Petition for Writ of Certiorari — Energy West, Inc. v. Tacke

FILED

\\oe “ognese mar 24 za

NO

OFFICE OF

fu the Supreme Court of the Gnitey SAM os

(GY WEST, ING

( ) Supreme Court, U.S.

tition for Writ of Certtorart to

j ‘ ,

Montana Supreme Cour

PETITION FOR WRIT OF CERTIORARI

Patrick d. Perotti, bse

DWORKEN & BERNST

GOO South Park Plac«

Paimmesville, OLL 44077

(440) 352-3391

(440) 302-3469 La»

pperotti@dworl eniaw

Mark Io Higepoins

UJGRIN, ALEXANDER, Z

& HIGGIns, PC

M2 Rathroad Nquare, oO

Cireatl Falls, M'P 594038

(406) 7/1 0007

(406) 402-9360 tax

milh@uazh com

Altorneys for Petitioner

( ounsel Oo] Record

ribgapelies Cuwiuiati, Ol Washipton, 14

QUESTION PRESENTED FOR RIEVITEW

Whether al court Cail award attorneys fees

pursuant to the Fair Labor Standards Act where the

Petition for Attorneys’ Fees 1: supported by an

Affidavit from counsel stating only the total lump sum

number of hours spent on the entire litigation without

providing contemporaneous time records reflecting the

hours expended and the nature of the work done on

Ere F | h date work Weale } >< rformed

RULE 29.6 STAPEMEN'

parent company 1 hnergy Pri

Mnergy, Inc. is a pubheally traded company and 1

is the parent company of Itnergy West, 1e., IEnerg

lnc. owns 100% of the stock of hnergy West

TABLE OF CONTENTS

QUESTION PRESENTED FOR RieVilw

RULE 29.6 STATEMEN'!

OF CON TIENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTIONAL STATEMENT

PTATUPORY PROVISION INVOLVED

STA'TICMICN'E Ol* PHile CASE

Statement of Facts and Issue:

REASON FOR GRAN PING THis PloPreriron

CONCLUSION

APPIENDIA

Append A Opinion in the Supreme ¢ ourt of

the State of Montana

(failed February 23, 2010)

Order Kk: Attorney ces and

Costs, Montana Iipghth Judicial

District Court, Cascade County

(dated July 21, 2009)

Ymended

Appendix ; second

Judgement Montana

Judicial District ©

(County

(dated January 21. 2009)

Appendix 1) Amended Partial Judgment

Montana Mighth Judicial District

( ourt, Cia cade (County

(filed December 4, 2003)

Judgment Montana

Pudicial District Court

(COUNLY

Ok AUTIPORTTITS

Perdue v. Kenny A

US miilme se 16) '2 1/6 L,.hd.2d 194

(OQ)

Framos v. Lamm,

113 F.2d 546 (10 Cir. 1983) 4y ]]

Sheets vo. Salt Lake County

15 F.8d 1383 (10™ Cir. 1995)

Sussman v. Patterson,

108 F.8d 1206 10" Cir. 1997) 4

Voccat Playboy tlotel of Chicago rire

G86 F.2d 605 (7™ Cir. 1982) 9 10

Statutes

OPINIONS BELOW

The original Judgment dated November 25, 200%

vhaich reflects the jury’s November 14, 2008 verdict

as not offically reported but is reproduced in the

Appendix at fk ‘The District Court’s July 22, 2009

Order regarding attorneys fees and costs was not

officially reported and is reproduced in the Append»

at ds. The Opinion of the Montana Supreme Court wa:

published and can be found at $55 Mont. 2438, 227 Psd

601 (2010) and 1 reproduced in the Appendix at A

AURISDICTIONAL STATEMEN'I

Petitioner respectfully requests that this Court

yragob their Petition lor a Writ of Certiorari to review

the Montana Supreme Court Decision regarding the

award of attorney: fee; LO) Respondent Lt) Tache e

energy West, Inc., 355 Mont. 243, 227 Po 38d 601 (2010)

Which was decided on February 28, 2010. This Court

hea jurisdiction pursuant to 28 USC. 8125 7a)

bra AUDSC the de CISION Was de« ided applying fede ral haw

SPATUTORY PROVISION INVOLVED

29 U.S.C. &§216¢b)

Damapres, rmpght of action; attorney: fer and

costs ‘The court in such action shall, in addition to

any Judgment awarded to the plaintiff or plaintiff

allow reasonable attorne Vi fee; LO be paid hy thas

defendant. and cost of the action

STATEMENT OF THK CASE

Respondent filed this action against Petitioner in

state court in the Haghth Judicial District, County of

Cascade, State on Montana alleging violations of the

federal Fair Labor Standards Act, 29 U.S.C. §&2Z0O1]1 et

seq. (hereafter “FLSA”’). Respondent alleged that

She had been misclassified as an exempt employee and

was seeking to recover unpaid overtime compensation

for hours she had worked in excess of 40 hours per

week but for which she had not been paid at the rate

of one and one-half times her regular hourly rate a:

required by the FLSA. After the District Court denied

cross-molions for Summary judgment, the matter

proceeded to a jury trial. ‘The jury returned a verdict

in favor of Respondent in the amount of $35,220.00 a:

is reflected in the Judgment entered on November 25,

2008, whichis attached hereto as Appendix If and the

Amended Partial Judgment entered on December 4,

2008, which is attached hereto as Appendix ID

the award of costs and liquidated damages, after which

the District Court entered a Second Amended Partial

Judgment ondanuary 15, 2009 awarding an additional

$35,220 in liquidated damages and $4,958.73 in costs

to Kespondent. A copy of the Second Amended Partial

Judgment is attached as Appendix ©. The court

entered a Final Judpment on duly 21, 2009, when it

issued an Order awarding an additional $4,372.10 in

expert witness fees, $1,147.10 for travel expenses fos

Attorney Howard Strause, $95,737.50 in attorneys’

fees for Attorney Klizabeth Best and $90,675.00 in

attorneys’ fees for Attorney Iloward Strause. A copy

of the July 21, 2009 Order for attorneys’ {ces 1:

attached a Append» 14 ‘The total pudement

including attorneys fees and costs 1s for $267,430.4

Qn August 17, 2009, Kknerpy West filed a Notice of

Appeal with the Supreme Court of the Sti of

Montana from the various judpments cited above

mcluding the July 21, 2009 Order on attorneys’ fee

On February 23, 2010, the Supreme Court of the Stat

of Montana issued its Opinion upholding the verdict of

the District Court in all regards in Jacke v. knersy

West, Inc., 355 Mont. 248, 227 P2d 601 (2010)

Statement of Facts and Issue:

Kespondent bya: been employed by Petitioner an

various positions since 1970. During the period of time

relevant to thi: lawsuit, Respondent Was POCSpoti hole

for running Petitioner's credit department. In 199%

Respondent switched from being paid as an hourly

coiployee to bemp paid asa salaried employee. At that

same time, Petitioner began paying Respondent as i

she was exe ripot from the FLSA‘ requirement Lhicat

chaployees be paid overtime for hours worked in exc

ol 40 hour: per we

In 2OQ4 Vetitioner br Pan questlionime Wwhethes

Respondent was properly assihed as an @xempt

employee \s a result, she wa: Lemporarily returned

loan hourly status based on aninternal determination

that she did not meet the requirements of the

executive exemption. Upon further analysis, however

Petitioner subsequently delermined that Respondent

was exempt pursuant tothe administrative exe mplion

and returned het to he salamed statu unde) which

che wa ho} paid overtinn

Kkespondent ultimately brought this claim in state

court seeking to recover unpaid overtime compensation

to which she belneved she was entitled pursuant to the

federal FLSA. ‘The matter was tmed in state court

applying the federal substantive law of the FLSA. ‘Th

principal issues at trial were whether Respondent

qualified as an exempt employee, and, if she did not

what Was this amount oO} unpaid Overtime

compensation to which she was entitled ‘The jury

returned a verdict in Respondent's favor, determining

that she was not properly classified as an exempt

idministrative employee, and awarded her $35,220 in

unpaid overtime compensation

mubsequent to the jury trial, the partres undertook

post judgment proceeding addressing whether

tespondent was entitled to liquidated damages and/o1

attorneys fee:

Respondent submitted a petition for attorneys’ fe

(hat gncluded aflidaviat from both of her counsel!

Attorneys Howard IF. Strause and Elizabeth Best

Neither the petition nor Attorney Strause’s or Best

affidavits provided any contemporaneous billing

records breaking down the number of hours of work

performed in connection with any particular activitie:

on any particular date Ktather, Attorney Strause

aflidavit provided that he had rea Onably CA pre nded

397.14 hour: lo date, in the representation = of

Vlaintiuif and lhizabeth Best's affidavit provided that

she had “reasonably expended 405 hours, to date, in

Lhe representation of the Pihaintill.’ Both Attorney

Best and Attorney Strause testified at the July Z]

Z009 attorneys tee hearing that the y had also worked

additional hours dealing with the post trial issues, but

did not provide Any detailed breakdown of how those

hours we re spent The e lump sum hourly totals were

the only information submitted by Ke: pondent which

the District Court could rely on in determining the

number of hours Kespondents counsel had spent on

the htigation. The District Court accepted the total

number of hours attested to by Respondent cCOounse|

and awarded a total of $186,412.50 in the July 21

2009 Order regarding attorneys fee: The District

Court reached this total by multiplying the total

number of hours worked by Attorneys Strause and

best by an hourly rate of $225.00 pe! houl

Petitioner appealed the jury's verdict, the award of

liquidated damages and the award of attorneys tee

and cost to the Montana Supreme Court With

respect to the attorneys fee issue which is the subject

ofthis Petition for Writ of Certioran, Petitioner argued

that Respondent had not met her burden of proof in

connection with her petition for attorneys fee

Petitioner argued that in utilizing the lodestar method

for calculating attorneys fees, the Respondent had thie

burden of supporting her request with

contemporancous time records rellecting, for cach

attorney, the hours expended and the nature of the

vork done Because the Respondent had simply

ubmitted lump sum hourly totals, the District Court

had no ability to assess the time spent oneach activity

lo determine whether the work undertaken with

respect to each activity was reasonable or make any

determination as to whether Attorney Strause and

Best unnecessarily dupheated efforts with respect to

any particular task: While the Montana Supreme

Court was critical of Respondents counsels’ failure to

ubmuit detailed billing records, it ultimately refused to

apply re | per >i &: rule requiring that such detailed

information be submitted, and upheld the Dustrict

(LOUrT | award Ol avLlLoOrney ite massed on thie ¢ Vice rice

ubmitted

The District Court conducted a careful review of

thie lee | Lit and we conclude that it exercised

conscientious judgement and did not clearly er:

in evaluating the evidence or abuse it

discretion inh approving thie lee award

liowever, while we do not adopt ik pel se rule a

On court have done We trongly urype

counsel to Keep and provide cCOntLeMpOranecous

time record In Support of attorneys lee

request and fee-shilting case and Wwe

encourage District Court to look askance at

Peque | Dot () upportled

Lackhe f MLCT Sy W [ Erie tore Mort 4 ‘ = »4 Get

P2d 601, 610 (2010)

REASON FOR GRANTING ‘PHE PETITION

\ court cannot award attorneys tees pursuant

to the Fair Labor Standards Act where the

Petition for Attorney lees is Supported by an

Affidavit from counsel stating only the total

Luinyp Suni number of hours spent on the entire

htigation without providing contemporaneou:

time records retlecting the hours e pended and

the nature of the work dons on cach date worl

p> riormy a

This Court has recognized that the general rule in

the American lepal system is that each party must pay

its own attorneys fees and expense Perdue v. Kenny

A\ Us 130 S.Ct. 1662 1/6 L.d.2d

194. 504 (2010) Conypre howevel! ha enacted

Variou: federal laws which abrogate this common law

rule, and provide that prevailing: parties can recover

thear attorneys’ fees. Among the laws which allow

prevailing plaintiffs to recover attorneys fees is the

MISSA, which provides that the District Court “shall, in

Wddition to any judgement awarded to the plamtilf or

plaintallss, allow reasonable attorneys fees to be paid

by the defendant, and costs of the action.” 29 U.S.C

-2160b). Like other statutory provisions providing fo1

attorneys fees, the FLSA does not set forth a specific

framework for determining how a reasonable

attorneys’ fee should be calculated The task of

identifying an appropriate methodology — tor

determining a reasonable attorneys fee was therefore

left to the courts. Perdue ual U.S. at 1380

CL. at 176 Lked.2d at 504

Thais Court recently recognized that the lodestat

method for calculating attorneys’ fees has “achieved

domunanece im the federal courts” and has “become the

minding hghtot [the Supreme Courts | fee shifting juri

prudence.” Perdue, Uo. al . 100 DAT. al

176, 1, d.2d at 504 quoting Gisbrecht v. Barnhart,

35 US. 789, &O1 (2002)

‘The lodestar method of calculating attorneys’ fee:

provides that the attorneys’ fee award is “the product

of reasonable hours times a reasonable rate.” City of

Rurlinpton vo Dague, 505 US. 557, 559-560 (1992)

quoting, Pennsylvania v. Delaware Valley Citizens

Counsel for Clean Aur, 478 U.S. 546, 565 (1986). Tha:

(fourt has not, however, ever | poken to the issue of

What evidence must bi Submitted by the partly

velitioning for attorney fees to prove the reasonable

| } |

mumiber of hours expended on the litipatron Lowe!

federal courts, however, have held that the “plaintilt

has the burden of proving in the first instance the

extent and reasonableness of requested attorneys’ fees

with meticulous and contemporaneous time records.”

Sheets v. Salt Lake County, 45 F.3d 13835, 1391 (10

Cir. 1995). The Montana Supreme Court, in this case,

however, refused to apply a per se rule that counsel

provide contemporaneous time records in support of

attorneys fees requests in fee shifting cases, even

though it was applying federal law pursuant to the

RLSA. Tacke vo. lnerpy West, Inc., 355 Mont. 243, 254,

224 P.3d 601, 610 (2010)

This Court has recognized one of the advantages of

the lodestar method for calculating an attorneys’ fee

award is the fact that it “produces an award that

rouphly approximates the fee that the prevailing

attorney would have received if he or she had been

representing: a paying chent who was billed by the

hour on a comparable case.” Perdue, U.S. 130

Cit. at .176 L.d.2d at 505. Moreover, the lodestar

method “cabins the discretion of the trial judges,

permits meaningful judimial review, and produces

reasonably predictable results.” /d. In the case at bar,

Respondent's failure to provide a detailed breakdown

of how the hours were spent in the litigation prevent:

appellate courts any opportunity to undertake a

mecanmptiul revicw of whether the time was reasonably

spent. Moreover, it prohibits the awarding court from

undertaking any meaningful analysis as to how the

total number of hours was calculated

Mederal circuit courts have reyularly held that fee

petitions must be supported with some level of detail

demonstrating how the total number of hours has been

calculated. I’or example, the ‘Tenth Circuit held that

‘counsel seeking fees must keep contemporaneous and

5

detailed records of their time...fexplaining]...how

many hours were spent researching, how many

Interviewing the chent, how many drafting the

complaint, and soon.” Sussman v. Patterson, 10% ¥.3d

1206, 1212 (10™ Cir. 1997) quoting Ramos v. Lamm,

| ‘2d 546, 553 (10™ Cir. 1983)

As far back as 1984, the I*irst Circuit put attorne

on notice “that henceforth, in cases involving fee

applications for services rendered after the date of this

Opinion, the absence of detailed contemporancous time

records, except in extraordinary circumstances, will

call for a substantial reduction of any award or, in

epreyvious cases, disallowance.” Gendel’s Den, Inc. v

Larkin, 749 ¥°.2d 945, 952 (1° Cir. 1984). The Second

Circuit made ai similar pronouncement in 19838,

holding that “hereafter, any attorney whether a

private practitioner or an employee of anon profit law

office who apphes for court-ordered compensation in

this circuit’ for work done after the date of this

Opinion, must document the application with

contemporancous time records. These records should

specify, for each attorney, the date, the hours

expended, and the nature of the work done.” New York

State Ass'n for Retarded Children, Inc. v. Carey, 711 ¥.

supp. 2d 1146, 1148 Cad Cir. 1983)

Circuit courts have likewise upheld the denial of fee

requests where the information submitted 1s

msufficient. In Voeca v. Playboy Hotel of Chicago, Inc.,

G86 F2d 605, G08 (7" Cir. 1982), the Geventh Circuit

rejected a fee application where the fee schedule

“failed to set forth a sufficient description of the type

of work performed.” ‘The court went on to hold that

“counsel seeking statutory attorneys fees has the duty

(oO maintain accurate and detailed time records. It 1:

] f

not enough to offer a rough estimate of the time

expended and then explain discrepancies that arise

with claims that they were offset in other places. Such

Claims are impossible to refute District courts

entrusted with the task of ordering an unsuccessful

htigant to pay the reasonable attorneys’ tees of his

opponent, may properly demand that a claim for such

fees be fully supported by accurate and detailed

records. When it is not, the request may be denied

Vocca, 686 F.2d at 608

The United States Court of Appeals for the District

of Columbia has recognized that the purpose of

submoutlting the detailed records is “to permit the

district court to make an independent determination

Whether or not the hours claimed are justified.”

National Assn of Concerned Veterans v. Sec’y of Def.,

675 F.2d 1319, 1327 (D.C. Cir. J982). In the case at

bar, the Montana Supreme Court’s refusal to require

prevailing parties who are seeking fees pursuant to

federal law to submit contemporaneous time records

undermines the rationale of the lodestar procedure

This Court has approved the lodestar method of

calculating attorneys’ fees specifically because it

provides an objective basis for awarding the fees

rather than giving the lower courts unfettered

discretion. See Perdue, Uo. al . 130 B.C. at

176 Lked. 2d at 504-505, recognizing the court’

reyecuion of methods of calculating fees that “placed

unlimited discretion in trial judges” in favor of the

lodestar ( alculation whic h i; “objective

Lower courts, in implementing the lodestar

approach to the attorneys’ fee awards adopted by the

United States Supreme Court, have recognized that it

iS mumportant for courts to undertake a meaningful

1]

analysis of the hours submitted to determine i they

were reasonable. The Eleventh Circuit has held that

time expenditures ought to be set out with sufficient

particularity so that the district court can assess the

time Clasmed for each activity. Norman vo. flousiny

Auth., 836 F.2d 1292, 13038 (11™ Cir. 1988). The trial

court should examine the reasonableness of hours

allotted to each specific task. Ramos, 713 I.2d at 554

fo situations where there are multiple attorneys

working on the case, courts can reduce the total hours

claimed if there is a duplication of cflorts. Davis vu

City and County of San Francisco, 976 f°.2d 1536, 1544

hi ‘ ‘ my’

iO” Cir. 3992) Phe practice undertaken by

hespondent’s counsel in this case does not allow any of

this Lype of required analysis

The practice of allowing counsel for prevailing

parties to submit a single, lump sum total of hours

spent on the entire litigation in connection with a fee

Shifting scheme provided by federal law wall

undermine the purpose of the lodestar method adopted

by this Court. The Montana Supreme Court, in failing

to follow the federal precedent, undermines the

effectiveness of the fee shifting provisions of the FLSA

set forth in 29 USC. 82160b)

‘This Court possesses jurisdiction to review state

court determinations that rest upon federal law.

Oregon vo. Guzek, 546 US. 517, 521 (2006) citing 2%

Us.C. §1257(a) The Montana Supreme Court;

failure to follow clear federal precedent in enforcing

the LSA undermines the principles of federal law

adopted by this Court in conjunction with issuing fee

awards under fee shifting statutory provisions of

federal law. Because this Court has never directly

addressed the evidence which a party must submit to

upport the calculation of the number of hours spent

on the litigation, this Court should grant Petitioner's

Writ) for Certiorari to require” parties seeking

attorneys fees pursuant to federal law, to support

their petition with contemporaneous time record:

setting forth, for cach attorney, the time spent on each

activily on each date for which the party is seeking

attorneys {fee

CONCLUSION

lor all the reasons set forth herein, Petitione

respectfully requests that this Court grant Petitioner’

Writ for Certiorari

hespect fully submitted

Patrick J. Perotti, lusgq

DWORKIEN & BERNSTEIN CO., i..P A

60 South Park Place

Painesville, Ohio 44077

Telephone (440) 352-3391

kacsimile: (440) 852-3469

pperoltu@dwot kenlaw.com

Mark I. Higgins

Uyprin, Alexander, Zadick & Higgins, PLC

#2 Railroad Square, Suite 3

(ireat Falls, MT 59403

Telephone: (406) 771-0007

kacsimile: (406) 452-9360

mil@uazh.com

Attorneys for Petittoner

APPENDIX

APPENDIX

TABLE OF CONTENTS

Appendix / Opimion, dn the Supreme Court of

the State of Montana

(filed February 23, 2010)

Append. Order Kite: Attorney fees and

Costs, Montana igedathh Judicial

District Court, Cascade County

(dated July 21, 2009)

Append peconad Amended Partial

Judyment Montana Maghth

Judicial District Court, Cascade

(County

(dated January 21, 2009)

Append.» Amended Partial Judpment

Montana lighth Judicial District

Court. Cascade County

(filed December 4, 2008)

Appendix {4 Judgment Montana Iighth

Judicial District Court, Cascade

County

(fale a NO ( ryt I La, “A UD) UD 245)

APPENDIX A

IN ‘THE SUPREME COU!

OF THE STATE OF MONTANA

DA 09-0456

2010 MT 39

[sled February 23, 2010]

DMLORKES TACKIs

Vlamtil and Appelle

urd PIN (

Welendant and Appr Mant.)

APPEAL FROM District Court of the Haghth

Judicial District, In and For thie

County of Cascade, Cause No

BIOV O5-1064 Honorable Julie

Macek, Presiding Judge

Ol Appr llant

Mark I. dhigpin

Aadick & Thppin

Montana

bworken

Painesville

Coitice

livered the Opinion of the Court

1. Ine appeal

and sub equent District

judgment in favor of it:

from a pur’y verdict

(Court orders entering a

employee, Delores ‘Vacke, for

hquidated

under the |

oOovertlinie damage COSLE

and

attlorne

il! Labo! mtandard Act

atlirm

/

Lid the District Court err in denying Inerpy

Sl mottons fol

summary judgment and directed

verdict reparding Lack

status as an exempt employee

jor Pur pose of OveTIULIN

hhLSAS

4 2? Did the District

liquidated damage Lo hack

Wo 3% bid the Ptstrict Court err in awarding

attorre YS” fee S Lo fu hee di ithout rPequerti 4 hachs

J

COMMS! lo provid COMLCINPOLTAaANeou Lisvile recora

iG 2. Lid the District Court err in awarding cost

pret wuanttol dL} All lead of th Montana cost Latiite

7 5. Didthe Prestrict Courterrinadmitttng Tack

exhiibits 2 oJ ] ana / , Ove) LUnergsy) W « [ objyectton

PACTUAL AND PROCEDURAL

BACKGROUND

| Packe began work for lnergy W 1 1970 and

held various positions within the company during hei

more than thirty-year career. ‘Tacke filed suit ayainst

nergy West to recover overtime wayes she claimed

she had earned between September 15, 2002, and July

lo, ZOO

WO During those Veal Packe worked

OUPerviso!l ol the Credit. and Collection Il) partment

position for Which shave received a ‘lary and

classilied by Ene ry West as an exempt employe

Tacke: CACIN DI classification meant 1) W ed not

entitled to receive overtime W eapre 1) rddition

ila y

T10 In 2004. Tacke

cmiployes altlended il Vall’ ‘ pal C’]))RTAl Lil

Billings. Phe seminar spurred several manayement

employee: lo question ‘lacke Classification a an

exempt employe U A \ Human Resource

Department advise : Baltrusch, Director of

(Operation and Tacke direct Y Or ot the

potential error and Baltrusch in {? matter

further

Wd) bsaltrusch testified that he soup ady from

John Allen, who wa both corporat counsel and thi

Hlumian Resource Otficer for Innergy West. Allen

instructed Baltrusch to ask ‘Tacke to prepare a written

hist of her duti Allen also provided Baltrusch a

checklist to aid in determining whether Tacke should

be classified as an « KCrpl or non-cxempl ciiployes

Packe provided cf histing Ol her adnate and th

percentage of her time expended on cach duty. Atte:

reviewing the list, Baltrusch testified that he again

poke with Allen and, although testimony was unclear

bout whether the two rehed upon either thi

“executive or “administrative exemption set forth in

law, both agreed that ltinergy West should reclassify

‘Tacke as au non exempt employee entitled to receive

overtime compensation. Kaltrusch testified he al

poke with others about the issue, including Enerypy

West ClO David Cerotzke. Cerotzke initially disputed

Maltrusch’ conclusion buat eventually allowed

Maltrusch to reclassify Tacke as non-exe mpl

“12 Qn dune 3), 2005. Baltrusch wrote a letter 1

Tbacke Informing he? that nergy est Nit

reclassilying her as non-exempt. The letter provided

im relevant part hol ome time there hia been

question on your employment status, that is whether

you are exempt or non-exempt for overtime. rom my

Landpoint YOU abe a JOD CAE hip ( mployer and must

paid vhen

rou) each weel cit Le Lidice

ited overtime

1.3 Packe filed ul AraINst\ ! neryy VW { inh

eptember 2005 in the liehth Judicial District Court

to recover claimed overtime COMIC iLion Atte

filed suit lonerg West reversed it

KCrnptl, relurniny her

114 tha District

urmmary judgment yr i ajyul

trial. On November y returned

pecial verdict in favor ‘h p30 220.00

Mcompen ated overtime

vever, find that ‘TPacke

CVIGCDC! that dune

roinnwe Nal Willful

District Cou ( i dgment «

January lo, ZOOU, awa my a peod,2209.00 for

uncompensated overtime Wap an addition

19,220.00 in liquidated damage

On July 21, ZO0G9, the Di ( u awarded

an additional $4,387; : ve te

lioward

e and attorne J ye sotrau

and $90.6075.00 for telizal a e obtained a

lotal final ‘ayy tk

‘)

ey a UE

Oa

STANDARD OF REVIEW

11G6 Wereview the District Court's denial of motion

for summary judgment and directed verdict de novo

Pucker v. Farmers Ins. lkixch., 2009 MT 247, 923, 351

Mont. 448%, 215 P.38d ] (eitation omitted); Mckay |

Wilderness Dev., LLC, 2009 MT 410, 4 26,353 Mont

M/1, 221 Psd L184) Ceitation omitted) When

con dering asummary judge mi nt motion, a court may

not “make findings of fact, weigh the evidence, choos

one disputed fact over another, or assess the credibility

olf witnesses. Andersen v. Schenk, 2009 M'T 399, ¥ 2

353 Mont. 424, 220 P.dd 657. The court may only

examinel] the pleadings, deposition answel to

interrogatories adm ions on tile and atlidavit Lo

determine whether there 1s a genuine issue as to any

maternal fact relating to the legal issues raised and, if

there is nol, whether the moving party is entitled to

judgment as a matter of law on the undisputed fact:

Andersen, | 2 (citing M. R. Civ. P. 56(e); Corporate Au

v. Mdwards Jet Ctr., 2008 MT 283, 4 28, 3845 Mont

536, 190 P.3d T1111). Similarly, a motion tor a directed

verdict is “proper only when there 1 6 complete

absence of any evidence to warrant submission to a

yury. d#eyan v. City of Bozeman, 279 Mont. 507, 510

YQ2R P.2d 228, 229-30 (1996) (citation omitted)

S117 We review thie District Court

award of!

attorneys. fee costs, and evidentiary rulings for an

abuse of discretion. /n re Marriage of Cameron, 2009

MP 802, 9 17, 852 Mont. 375, 217 P.38d 78 (citation

omitted); Putchie v. Town of Innis, 2004 MT 43, 4 &

320 Mont. 94, 86 VP.3d 11 (citation omitted): Malcolm

v. kKvenflo Co., 2009 MT 285, §| 29, 852 Mont. 325, 21%

3d 514 (citation omitted)

) «dD }

DISCUSSION

"1k l. Lid the Distruct Court err in den yirnp lenerpy

We: ts MIOTLOTLS jor SMLTILITLaAT YY Judgment ard dire le a

verdict reparding Tacke’s status as an exemrpl employee

for purposes of overtime compensation under the

HLASAS

W199 kenergy West argues ‘Tacke provided no fact:

establishing that she fell outside the administrative

exemplion to the FLSA and the District Court

therefore erred in denying its motions for summary

judgment and directed verdict. Vacke counters that

she indecd presented evidence that her work did not

qualify for the administrative exemption and that

fneryy West failed to show, as a matter of law, that

She fit within the administrative exemption

WZO In 19388, Conpress passed the LSA “to prevent

the use of unfair trade practices m= interstate

commerce leading to ‘labor conditions detrimental to

the maintenance of the minimum standard of living

necessary for health, etfierency, and general well-being

of worker: Stewart ov. ftegion Il Child and

family Servs., 242 Mont. &&, 94, 788 P.2d 914, 917

(1990) (Ceatation omitted) The FLSA require:

crmiployes Lo pay employees overtime ¢ ompensation lor

hours worked in excess of forty hours per week. 29

UES. § 2ZO7(ad1). The KILSA provides exemptions for

certain executive and admuinistrative ¢ mployees, bust

employers bear the burden of proving that the

employee fits “plainly and unmistakably within the

exemption’s terms.” Mont. Publte hmployee's Assoc. v

Mont. Dept. of Transp., 199% MP 17, 4 , 247 Mont

229, 954 P.2d 21 (ating Spradling v. City of Tulsa, 95

Mesd 1492, 1495 (Oth Cir, 1996); Aaron v. City of

Wichita, 54 F.3d 652, 657 (10th Cir. 1995); Reich v

Wyo., 993 F.2d 739, 741 (10th Cir. 1993))

{W219 ‘The administrative exemption relied upon by

Mneryy West applies if three elements exist.’ First, the

employee must be “lclompensated on a salary or fee

basis at a rate not less than $455.00 per week

exclusive of board, lodging, or other facilities.” 29

LC ® 641.200(a)11). Second, the employee’s

“primary duty” must be “the performance of office or

non-manual work directly related to the management

or general business operations of the employer or the

employers customers.” 29 C.F. § 541.200(a)CZ). “To

meet this requirement, an employee must perform

work directly related to assisting with the runniny o1

servicing of the busines: ~ 29 C.F .R. § 541.20](a)

Third, the employee's “primary duty” must include

“the exercise of discretion and independent judgment

With respect to matters of significance.” 29 CLERK

8 041).200(a)(3). Such discretion or independent

judgment must be “more than the use of skill in

applymiy well-established techniques, procedures o1

speaihe standards desenbed inp manuals or other

SOUPrCES 29 CAN. § 541.202(e). ‘To aid in applying

these three elements, the regulations provide examples

of position that qualify for the administrative

exemption. 29 CFR. §& 541.2038; see also 29 CFR

© H41.703Cb)

‘In 2004 the US) Department of Labor reorganized and clarified

the repolations addressing the administrative exemption, but, for

purposes ol the analysis in this case, the substantive content of

the regulations remained the same

W22 Applying these regulations to the evidence in

the record leads us to conclude that the District Court

did not err in denying summary judgment and a

directed verdict to Innergy West. We need look no

further than ‘Vacke’s own testimony about her typical

work day. At 6:00 a.m., Tacke began by printing

notices for ltnergy West customers whose accounts

were dehnquent. The computer penerated the list of

notices, and the printing penerally took Tacke two

hours Lo complete Around &:00 a.m., Tacke would help

cashiers open the mail and post payments to ensure

energy West did not shut off pas to a customer who

had just paid a delinquent account. Krom 9:00 a.m. to

10:00 acm., Tacke returned to printing notices fo

delinquent accounts until completed. For the rest of

the morning, TVacke took “phone calls and payments

from customers” and also called customers to arrange

for Mnerpy West to access inside meters. During the

lunch hour and other break periods, ‘Tacke filled in for

the switchboard operator. lor the rest of the afternoon,

‘Tacke took additional plone calls from customers who

wanted to pay on their past due accounts, entered

customer payments on the computer system, and

ensured linerpy West had access to inside meters

According to ‘Vacke, she addressed customer issues

with the Public Service Commission less than once a

month. She operated exclusively within Energy West's

policies and manuals, and, similar to other employees,

was authorized to “write off balances that people owe

1} thew bills’ ol lip Lo only $50

This testimony, taken as true, establishes that

Tacke did not meet the requisite clements, set forth

above, for an administratively exempt employee

Although contested by Ennerpy West, this evidence wa:

noncthele sufMj@ent to raise genuine issues of

Oa

material fact about whether ‘Vacke qualified for the

administrative exemption. See Andersen, | 2 (A court

has no authority to “make findings of fact, weipzh the

evidence, choose one disputed fact over another, 61

assess the credibility of witnesses” at the summary

judgment stage.) Neither was there “a complete

absence of any evidence to warrant submission to a

jury’ necessitating a directed verdict. /tyan, 279 Mont

at 510, 928 P.2d at 229-30 (citation omitted). We

affirm the District Court’s demal of Energy West:

motions for Summary judgement and directed verdict

qj 2: 2. Did the District Court err in| awarding

liquidated damapes to Tacke?

{25 We review an award ot liquidated damarpe:

under the FLSA utilizing multiple standards of review

although we have not previously stated them

comprehensively. First, concerning the determination

that an employer has or has not acted in good faith

and on reasonable grounds, a district court’s factual

findings are reviewed for clear error and. lepal

conclusions are reviewed de novo for correctness. Tefft

U) Mont. , Ae Mont 5 YAR {)] IL. 694 P.2d so ee PA

(1995); see also Rodriguez v harm Stores Grocery, [ne

HIS Sd 1259, 1272 (11th Cir. 200%) Ceiting 29 USO

& 260). ‘Then, ifan employer has established good faith

and reasonable grounds, we review the ultimate

de ISIOn COMNCCHMIMNP al award of liquidated damape:

for an abuse of discretion. 7eff/t, 271 Mont. at 94, 894

P 2d at 324; Rodriguez, 516 F.3d at 1272

4126 Mnergy West first argues that because the jury

found it did not act willfully in withholding overtime

compensation from ‘Tacke, the District Court) wa:

prohibited from awarding lquidated damages. Tack

lla

responds that, while she did not satisfy her burden of

proving Itnergy West acted willfully, Inergy West

likewise failed to meet its burden of proving it acted in

yood faith and on reasonable yrounds—an entirely

different question

W27 The FLSA provide: that if oan employe

withholds overtime compensation in violation of 29

U.S.C. & 2Z07(a)O1), the employer “shall be lable to the

employee or employees affected in the amount of

their unpaid overtime Compensation and in an

additional equal amount as liquidated damages.” 29

U.S.C. §& 2160b) (emphasis added). However they may

be perceived, liquidated damages are not for the

purpose of punishing the cimployer, but fos

compensating employees “for any losses caused by

delayed receipt of overtime waves they are due.”

, 940 F.2d &96, 910

(3d Cir. 1991) Ceitation omutted). To avoid liquidated

Martin v. Cooper elec. Supply Co

damayes, an employer must first demonstrate that his

actions were “in vood faith and that he had reasonable

grounds for believing that his act or omission was not

a violation of the [LSA] "29 UL5.C. §& 260; see also

£2 O.F KR. 9 190.22

{128% The employer bears a “substantial burden” in

demonstrating vood faith and reasonable yrounds

Renfro v. City of kmporia, 94% 2d 1529, 1540 (0th

Cir. 199)) (citation omitted); Marshall vo. Brunner, 668

io 2d 748, 753 (3d Cir. 1982). “Crood faith’ exists when

the employer has “an honest intention to ascertain and

follow the dictates of the Act.” Renfro, 948 F.2d at 1540

(citation omitted). “Reasonable grounds” is an objective

standard by which to evaluate the employer's behavior.

Renfro, 948 F.2d at 1540 (citation omitted). Prior to a

showing of good faith and reasonable grounds, “the

ia

district court has no discretion to mitigate an

employer's statutory hability for hquidated damages.’

Marshall, 668 F.2d at 753 (emphasis added, citation

omitted). Only after the employer carmes its burden

may a district court, “in its sound discretion, award no

liquidated damages or award any amount thereof not

to exceed the amount specified in section 216 of this

title.” 29 U.S.C. § 260

29 We thus reyect lonergy West's suppestion that,

because it did not act willfully, upso facto it acted in

good faith and on reasonable prounds. ‘The question of

willfulness determines the length of the statute of

limitations. In “a cause of action arising out of a willful

violation,’ instead of a two-year statute of limitations,

the employee is entitled to a three-year statute of

limitations. 29 U.S.C. § 255(a). ‘To gain the additional!

year, the burden is on the employee to show the

employer's actions were willful, meaning “deliberate, -

“intentional,” or that “the employer either knew or

showed reckless disregard for the matter of whether

its conduct was prohibited.” McLaughlin v. Richland

Shoe Co., 486 U.S. 128, 133, 135, 1085. Ct. 1677, 1681,

1682 (1988). Here, the jury determined this standard

had not been met, and ‘Tacke was therefore entitled to

the two-year statutory period. ‘This determination,

however, is an entirely different question than

whether the employer acted in good faith and upon

reasonable pyrounds. See fodriyuez, 518 I .3d at 1274

The employer bears the burden of demonstrating the

vood faith and reasonable grounds necessary to avoid

an award of liquidated damages, and it 1s noteworthy

that, in addition to being described as a “substantial

burden,” courts have stated that an employer's ability

to escape liquidated damapes is the exception, not the

rule. Walton vo. United Consumers Club, Inc. , 7&6 t.2d

,

303, 310 C/th Cir 1986) (recognizing “|djouble

damages are the norm single damages — the

exception )

1

district court “may still award lquidated damaypes at

$0. leven Hf the employer carries this burden, the

its discretion in any amount up to that allowed by 29

U.S.C. § 2160b).” Mireles vo. rio koods, Ine., 899 F.2d

1407, 1416 n. 6 (Oth Cir. 1990) (citing McClanahan v

Mathews, 440 I*.2d 320, 323 (6th Cir. 1971); Martine:

v. kood City, Inc., 658% F.2d 469, 376 (Sth Cir. Unit A

198%1)). “If the employer shows to the satisfaction of

the court that the act or Omission giving rise to such

action was in good faith and that he had reasonable

grounds »the court may, mn its sound discretion,

award no hquidated damages or award any amount

thereof not to exceed the amount specified in section

216 of this title” 29 U.S.C. § 260 (emphasis added)

Because Conpress used the permissive word “may

instead olf “shall,” the District Court had no affirmative

obligation to strike or reduce the hquidated damage:

award against Energy West. In lgeht of the facts in thi:

record, we conclude that the District Court was well

within its discretion to decline to do so

4133 3. Did the Mistrict Court err in awarding

attorneys fees to Tacke without requiring Tacke:

counsel to provide contemporaneous time records’

“The parties here agreed that whether linergy West acted in good

faath and on reasonable grounds was a determination to be mad

by the court, not the jury

“EK nerpy West does not challenge the District Court’s conclusion

that a fee rate of $225 per hour was reasonable or its calculation

of the lodestar amour

W382 FLSA provides that “[thhe court in such action

shall allow re | reasonable attorney's tee to be paid by

the fe mployer| "29 U.S.C. & 2160b). To determine

the attorneys fees, courts use the “lodestar” method,

Which consists of “[mfjultiplying the number of hour:

reasonably spenton the case by an appropriate hourly

rate in the community for such work.” Saizan vo. Delta

Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir. 2006)

(per cursam) (eitation omitted); see afso Laudert vo

Richland Co. Sheriffs Dept., ZO0O1 MP 287, 14, 507

Mont. 408, 38 P.38d 790. The lodestar method “is

presumed to be the reasonable fee to which counsel 1:

entitled.” Penn. o. Del. Valley Citizens’ Council for

Clean Air, 47% U.S. 546, 564, 106 S. Ct. 6088, 3098

(1986) (quoting flum ovo. Stenson, 465 U.S. &86, 497,

104 S&S. Ct. 1541, 154% (1984)) (emphasis in original,

quotations omitted), Laudert, 17 (citation omitted)

The party seeking the fees bears the burden of

showing the “reasonableness of the hours billed.”

Saizan, 448 I.38d at 799. Reasonable fees do not

include fees that were “unproductive, excessive, or

redundant.” and the fee claimant must establish

reasonableness by the pre entation olf evidence

Saran. 448 bk Sd at 799 (eitation omitted)

W380 leneryy West argues the District Court erred im

awarding attorneys’ fees because ‘Tacke failed to

submit contemporancous time records detailing he

counsel's work on the matter. Tacke rebuts Kinerpy

West's argument, first, by arguing Energy West

neither requested the production of — billing

documentation nor produced its own number of hour:

worked on the case. However, it was not Knergy West

which was seeking a fee award. It was ‘Vacke’s burden,

not knergy West's, to provide evidence demonstrating

that her claimed attorneys fees were reasonable. ‘To

Da

hold othe DW Ist would ‘ hit ‘Pac ke: hurd n to lonerpy

134 Tacke then argues, as she did in the Jistrict

Court, that she wa pot required to provide

contemporaneous billing records and that her evidence

vas sufficient to carry her burden. The evidence 'Tacke

submitted to the Distrmct Court consisted of two

ailidavits containing a total of seven sentences, expert

deposition testimony, and testimony from ‘Tacke’

counsel. This evidence was long on opinion, but short

on detail about the purpose of the hours claimed by thie

lawyers. ‘The District Court concluded that the

evidence, when coupled with its personal knowledge of

the case, vahdated “the hour: that heave Deen

submitted here are in fact reasonable

{W35 dlowever, unlike a district court, an appellate

court lacks personal observation and involvement ina

ease that can be called upon when considermy an

attorneys fees award. Without detailed evidence about

the hours spent, we are left to assessing counsel's

conclusory statements about lack of duplication or

reasonableness on their face, o1 COMMparinp Contrary

expert opinion. Appropriate appellate review 4

thereby hindered, and for this reason appellate court

nationally have required production ol

contemporaneous billing records, speaking with much

frustration about the issue. The Second Circuit

admonis hed plaintiff: Couns el masimilas . lee-: hidtiny

circumstance

In light of the difficulties that can be traced to

the failure of plaintiffs’ attorneys to keep

contemporaneous time records, we are tempted

Oa

LO ace pl the State's propo al that plaimmtiff bye

denied all attorney s lee:

mulat difficulties raised by the lach of

contemporaneous records in this case convince

us of the need to announce for the future that

COnLEMpoOraneou: Lime records are i

prerequisite for attorneys fees in this Circuit

N.Y. State Assoc. for Retarded Children, Inc. v. Carey,

711 2d 1136, 1147 (2d Cir. 1983) (analyzing award of

reasonable attorneys fees under 42 U.S.C. & 1958). We

are similarly “tempted in this case. Other courts have

hkewise expressed these concerns. See e.g. Natl. Asso

of Concerned Vets. v. Sec. of Def., 675 F.2d 1319, 1327

(10.0. Cir. 1982), Grendel’s Den, Inc. v. Larkin, 749

'.2a 945, 952 (ist Cn 1984): fm ve tludson &

Manhattan PP, 339 F.2d 114, 115 (2d Cir. 1964):

Sussman v. Patterson, 108% F.3d 1206, 1212 (10th Ci

1997); Hensley v. Eckerhart, 461 U.S. 424, 433, 1083S

Ct. 1934, 1939 (1983) “Where the documentation of

hours 1s inadequate, the district court may reduce the

award accordingly.”); drickson vo. City of Topeka, 239 I

supp. Zd 1202, 1206 (). Kan. 2002) C°To satisfy the

burden of proving a reasonable fee, counsel must keep

contemporaneous and detailed records of time ie

(citation omitted); Bergeson v. Dilworth, 875 i. Supp

133, 737 CD. Kan. 1995) (production of time records

required when attorneys work on a contingent fee

basis)

136 “Packe further argues that even if she wanted to

produce the billing records, both the attorney-client

privilege and work-product doctrine preclude her from

doing so. In asserting the attorney-client privilege,

‘Tacke cites to Clarke v. American Commerce Natl

Léa

Bank 9/4 FF 2d 2s (9th Ca 19992) Ploweve!

assuming Clarke apples, it docs not support a blanket

prohibition on providing billings records. ‘There, the

American Commerce National Bank (ACNB) allegedly

paid the personal legal expenss for 3tS chairman

Clarke, 974 I.2d at 128. The Office of the Comptrolles

ol the Currency inve Sligated Lhe matter further. and

eventually issued an administrative ubpoena LO

ACNB tor the production Ol billing babtemant from

outside legal counsel. Clarke, 974 2d at 128%. ACNE

asserted the attorney-client privile r¢ ad ftey

reviewing: the records, thr Ninth ¢ ircuit conciuded

he billing statements} do not contain

privileged COMmMMmMunication between attorne

and chent. Phe statements contain information

on the Mentity ol (hae chent Lhe Case Pict tdic 10

which payimenl wa miade (he amount of the

fee, and the peneral mature of the Cryie

perform a

Clarke, 974 i.2d at 180. While Clarke protect record

“which also reveal the motive of the clhent in seekin

representation, litigation strateyy, or the poche

nature of the services provided, it does not support

blanket prohibition on the use of billing statement

Clarke Q74 I Yd at 129. In-camera review by the

district courts, accompanied with the use of redaction

?

when Mmecessary, will accommodate the need tor Ties

records in order to demonstrate the reasonablene ol

fee awards in fee-shilting cases while also protecting

the attorney-chent privilege. See ey. Huether v. Dist

Cl. of the Sixteenth Jud. Dist., 2000 MTV 158, 4 22, 800

Mont. 212,4 P.3d 119%

Wabi Mqually uNnpersuasive } backé argument that

the worl product doctrine also prohubits the use o

billing statements to Support an attorneys fees claim

The work-product doctrine, as delineated in M. Ro Ci

” ZO(b)3), 1 broader in application than the

ittorney-client privilege Dut it 4 not an absolute

privilege Kuiper vo. Dist. Ct. of the Ligphth Jud. lst

19S Mont. 452, 462, 6382 P.2d 694, 7OO (1981). ‘To

irite rpret Lye doctrine it Miposimy it blanket

prohibition on the use of administrative record uch

as time and billing document tretches the privilege

too far As peneralls noted, the wort product rule

\

cannot be invoked by an attorney in connection with

in affirmative claim tor recovery of attorneys fees to

ivold a discovery MAquiry concerning possible

apporlionm rit Ol or among CoOmpen able and

noncompensable claim 23 Am. dur. 2d Deposition

and Discovery & 45 (2002) (citing Martin vo. Paunovich

O32 So. 2d 611 (Fla. Sth Dust App 199.3))) see also

first Union Natl. Bank of S.C. vo. Soden, bt Sb 2d

3/2, SONU (H.C. App 1998) (analyzing billing statement

as not falling within work product). To the extent

billing records may contain “ordinary work product ot

OplMionh Wort product the records are », AaPaln Subject

to redaction of such information. See ep. Palmer by

DPiacon v. Farmers Ins. bhxch., 201 Mont. 91, 115, 11

61 P.2d 895, 910, 912 (1993

Wok ‘bhe District Court conducted a caretul review of

the fee assue and we conclude that it exercised

conseentious judgment and did not clearly err in

evaluating the evidence or abuse its discretion in

approvilry tne lee award hioweve! While we do nol

adopt a per se rule as some court have done, we

trong ly urge counsel LO KCCD and provide

contemporancous time records in support of attorney

Lene request

qaistrict court

Upporte 1

a 1 Pid the D

uanttoklhe Var

140 Ine rer) West arg

warding costs beyond tho allowed unde

| MCA which uf aru j ontrolling

pond ( { In thy aS yuld be

rtyt tha Unde!

provide rat itihe court 4 uc

addition to any judgment awarded to the plaintiff or

pl yntilis, allow a reasonab attorney fee to be praia

by the defendant, and costs of the action

’lOUD). Montana cost statute allov Chae

hae a ©] phar (

nuleap and other officer

(2) the ex] of taking deposition

(3) the lepal fe for publheation

pubheation is directed

(4) the lepal fees paid for filing and

papers and certilted copies of paper

used in the action or on the trial

(D) the legal fees paid stenopraphes

diem or for COpLe

(6) the reasonable CX pense Po prmatiige paper

for a heartog when required by a rule of court

.¢J Lhe reasonable >

Lrad Cript for the

(4) the reasonable « pens rPormaking am ipo!

maps iW require d and nece iry to be used o

drial or hearinps; and

(‘)) other eis onable and rie’ce ify CX pen

that are taxable according to the course and

jo! A LI i thie court TI l) { jl pero rth |

|

ction 25-10-20] VICCA. Eunerpy West challenpe tt)

District Court's award of costs tor mediation lees, lepal

research, copi postage, and the construction and

ynchronization of a deposition, arguing they exceed

fhe cost allowed by ¢ )-1L0-Z01. MCA

142 When determining which statute Lo apply, we

ire to use the particular over the reneral. Section |

225, MCA. Our decision in Aur vo. City of Billing

007 MT 201, 888 Mont. 402, 168 P.8d 615, provide

bye Ipful ruidanc In Aus the « mployee pout wed a

vase Claim under! thie State Latutory sce i¢ Awl

I a I hae parts areued whether cost should bi

awarded under the general costs statute or pursuant

0% 3b9-4-214, MCA, of the wage claim statutes. Au/t

1 35. We reasoned that “a more speciahzed Statute

may require its application mstead of the general cost

tatute. Auhr, 4&7. We concluded that “|t}his is a

age claim = cas pecilically covered by a more

pecialized statute, and applied § 389-4-214, MCA, thi

tatute awarding costs in wave Claims, instead of thi

general costs statute, & 25-10-2011, MCA. Auhr, {| 3%

"48 Similar to Aultr, ELSA’s cost provision 1S more

peck and hould control OVC! Vlontana a Oak ral

costs statute. To effectuate FLSA: poli les (Longre

nea permitted mdividual employes LO ue for bac

W «lt? © and hquidated qamage and LO I ¢ C1lV<

reasonable attorneys tees and cost: Barrentine wv

Arkansas Best Freipht System, Ine., 450 U.S. 728, 740

mn. 16, 1OL &. Ct. 1437, 1444 n. 16 (eating 29 USO

2)60b)). In keeping with the purpose of FLSA and out

loprcan huh, 29 U.S.C. &§ 2160)) should yovern instead

of & 25-10-201, MCA."

i}44 5 didthe lDestrict Court eri madmitting Jacke

exhtbits 2, 3, 4, and 13 over kinerpy Wests objections?

Al IL Orygsy West argh une that Packe exhibits of 2

land 14 were irrelevant, confusing, and should

bya ( Pyare) ( cluded ‘Tacke je pond: that these

cx dyttol yere relevant because they allowed the jury to

compare her classification and duties when classified

non-exempt with her duti when classitied a:

CXC ipl ‘Packe further Ary ue bhatt MWneryy West did

Hol raise the propes objection for extubits Zand 4

146 Melevant evidence include Ccvidence having

any tendency to make the existence of any fact thats

Ol con Capua nice tothe determination of the action more

probable Qo] iT probable (loan 11 yvoOuld 14 Without the

‘ ede Pie MI If it ra Al) } lhe { biibout AL I tif ail

“Our holding is liamated by luneryy West's narrow aryument that

the Pdsctrict Court erred in awarding cost Hoe ond those allowed

bridles 1-40), MCA. While we re jeck application of 20-10

Ol MCA, to the case sub judtice, no argument is made that the

COSLS 3 wded here were not allowable under 29 USC. & 2160b)

Ldacne ithority on that 4 tac bul we eave the 3 ue for

mother day. Seeeg Cho v. Koam Med. Seri a 24 | OuUpp

md 2Q2 YY (hh DN OY. 2007) (denyimy lepal research cost

Williams uo TW. Cannon, Ine, G57. oupp. Zd 1402, 1616 C5.)

hla ZO09) (denying mediation expenses), Calderon v. Witvoet, LIZ

[14 24s), 210 CTR LAT tad) (per Cur mi) (relerrips to Ys {

I 20 lo dele mine cost

three job descriptions which were not generated during

the 2002 to 2005 time period at issue, and a letter

dated October 29, 1990, informuny Taucke that she was

Classified a: non-exempt and must report hers

overtime

WAT After reviewing the record, we believe linergy

West properly rarmsed a relevance objection, but

conclude the District Court did not. abuse its discretion

in admitting the exhibits. While we see Energy West's

concern about relevance, the admitted exhibits, though

covering a different time period when ‘Vacke was paid

an hourly ciployee, provided the jury with

additional information about Jtnerpy West

Classification and reclassification of ‘Tacke: position

Al]

and whethe lonergy West had a Led willfully

‘4% loven al relevant, evidence may be excluded if it

the propensity to confuse the issue or mislead the

yury. MOK. levid. 404. Here, the Distriet Court required

‘Tacke to lay additional foundation about the exhibit:

and knerzy West had the opportunity through cros:

examination, Case an-clief, and closing arguments to

Canty any potential confusion that the exhibit

Cit) ead

VV E>’ COC!

[W. WILLIAM LEAPHARI

PT BRIAN MORRIS

MWSPATRICIA O. COTTER

PP JAMES ©. NIELSON

APPENDIX TK

MONTANA EIGHTH JUDICIAL DISTRICT

COURT, CASCADE COUNTY

(Clause No. BDV-05-1064

[Dated July 21, 2009]

OkDER Rk: ATTORNEY FEES AND COSTS

24, aus, 3 ‘arings was held on Vilaintsfl

Motion for Attorney Ie and Costs. Vlaintull wa:

represented by Hhzabeth Best and Howard Strause

Defendant was represented by Mark Higgins and

Kuchard Selby. The Court considered the testimony

evidence and arguments presented and = issued

aidiny of bac conclu hot) ol baw anid All ordet! }1)

Open cour Vhaich are mcorporated here prasu set forth

That Plaintiffis entitled to recover the following

costs from Delendant

14/210 1 Xperl witnes: of Veter Meloy;

1147.10 ‘Travel lor lioward

‘That Plaintitis entitled to recover the lollowiny

itlornys y fees from VWetendant

Zabeth Best 425.5 hour

pZZ9.QO0 pr I oul

ward strause 403 hour

$1225.00 per hou

fcs/Juhe Macetk

JULI MACHK

DISTRI

Mark Higyan SQ

I?) box 1746

CGgreat Falls M'T 59403

Kichard Selby, El, lasq. G@OO59996)

Dworken & Bernstein Co., L.1 A

O60 South Park Place

Painseville, OH 44077

Aitorne y {or er fendant

APPENDIX ©

MONTANA EIGHTH JUDICIAL DISTRICT

COURT, CASCADE COUNTY

Cause No. BDV-05-1064

[Dated January 14, 2009]

DELOKKS TACK

PViaintilf

Defendant

SECOND AMENDED PARTIAL JUDGMENT

This case having come for tral with jury on

} J

November 10, Z2ZO08%, and atter consideration of the

testimony prese nted and evidence introduced, the jury

did, on November 14, 2008, return a Special Verdict in

lavorol Vilaintilfl, Delores Tacke, awarding Viaintilf the

sum of Thirty Five Thousand, ‘Two Hundred ‘Twenty

Wollars (~35,220.00) in damages against lineryy West

Incorporats di

The Court held a hearing on January 32, ZOO9

Pilaintill wa repre ented by Howard Strause and

ata

Mhizabeth Best. Defendant was represented by Richard

Selby and Mark Higgins. ‘The Court considered the

testimony and evidence presented at trial, argument:

of counsel, boeis and other papers filed by the partic:

on the subject of liquidate d damages and cost:

A copy of said Special Verdict is attached hereto

}>¥ |

and by this reference made a part hereof

IS HEREBY ORDERED, ADJUDGID AND

iit follow:

That Plaintiff Delore: Tack Ve mee aT

above entitled action shall have judgment

against Defendant, lnerpy West, in the sum of

Thirty Five Thousand, ‘Two Hiundred ‘Twenty

Dollars ($35,220.00);

That thre Phaimmtill be awarded liquidated

damape: i the sum of ‘Thirty I ive ‘Thousand,

‘Two Hundred ‘JSwenty Dollars ($35,220.00); and

That the Plaintif be awarded reasonable cost:

of this lawsuitun the sam Four ‘Thousand, Nine

lfundred Fifty Might and Seventy Three Cent:

($4,958.73)

Phat the Plaimmtifh be further awarded her

reasonable attorney {fe and cost: the amount

to be determined at a later date

DATED this 14° ay ol danuary, ZOO9

JULI MACKK

PH HONORABLIc JUL MACK K

cc: Richard N pelby, I] It, q

Mark Higgins, sq

Mlizabeth A Mest, le q

Howard F. Strause sg

“aa

MONTANA EFIGHTH JUDICIAL DISTRICT

COURT, CASCADE COUNTY

Clause No. BDV-05-1064

(hailed November 14, 2008]

Phartill J

MINTY WY I | { j

Wetendant )

}

PICCIAL ViekDIC bh lORM

i Pid Dx lore ‘Pack prove by a preponderance QO]

Ubi ( VICE bic that lone ey We SI fale d LO frcay Piet

OverlLime Wate

2, lf MnO, VO IO further and inform Lie IL) phil

you have reached a verdict

5) Ti yes, proceed to question #

Did Iknergy West prove by a preponderance of

the evidence that Delore ‘backe wa exempt

rom payment Oo] Overtime clue LO thie

administrative exemption

I

f\

A) If yes, go no further and inform the baaliff

you have reached a verdict

)

Is) li no proceed to question #

lid Delore Packe prove by a preponderance e of

the evidence that MWnerpy Wests failure to pray

Overbinne Wal willful?

lf yes

15) ng,

question

lf you found Knerpy West acted willfully, what

ms the amount of unpaid wage: owed to Delore

Packe for the period from September 15, Z00Z to

July 15, ZOO5?

vered que tion 1/4 yono lurthes

and mndornmy Lae bycandafl y ( av reached

verdict

a |

Hi you found Knery tL did not act willfully

what is the amount ot unpaid Wap owed to

Delore TPacke for the period trom Septemibe:

20038 to duly bb, ZOQOH?

PAPA YEO).

PPICNDIX D

VON TTANA EIGIUPH JUDICIAL DISTRICT

COURT, CAS( Ab}k ( QQUNTY

(Cause No. BDV-05-1064

MEGAERROSKS5S

[hailed December 4, 2008]

AMENDED PARTIAL JUDGMENT

Thi Coch pt haviniy ( pr iie LO! trial v\ Lh pil y

Jovermber 10 OOK. and aiter consideration of the

testimony pre ented and evidence introduced, the

did, on November 14, ZO08, return

lavor ol Phat, De lores Lbacke

pur’y

a ped mal Verdict a

awarding Viamtilt ‘wat

unm Of Thirty have Phou ind fwo lHiundred

went

Dollar (hes. 4200 UU damare LerPaad nn t tone my V

bncorporat re

Live Uithh O|

}i1

adetermine

at ld on V1

Smelems

APPENDIA 1

MONTANA EIGHTH JUDICIAL DISTRIC

COURT, CASCADE COUNTY

(Clause No. BDV-05-1064

MITG4 EF ROSBRS

it ned November 25, 2008]

ye] PAC KI

4 i v\ | ‘

; 3 ‘

JUDGMEN'I

Phil CaS having con I U! itt pull (

ember 10 OOS ind atter co Mderation of th

L¢ LEMONY pore Crile band « VIdence pitroduced Live puUT YS

on November 14. Z0O08. return as peal Verdict in

rol Plamtill, Delore Packe iwardiny Plapatill thre

im of Vhirty Five Thousand, ‘Two Hundred ‘Twenty

Dollars ($35.270.00) in damage mst nergy We

ly rporale

LI ye

vy ¢ pudyvrnent

L. ay) Ubae ith Ol

undred ‘J (>i