United States District Court, E.D. Wisconsin
DESIGN BASICS LLC, PRIME DESIGNS, INC., and PLAN PROS, INC. Plaintiffs,
LEXINGTON HOMES INC., TEAM STIMPSON LLC, TAILWIND CROSSINGS, LLC, PONDS OF MENASHA, LLC, FIELDSTONE INVESTMENTS, LLC, CENTENNIAL CENTRE, LLC, JEFFREY T. MARLOW, and MICHELLE L. STIMPSON, Defendants, and ACUITY, A MUTUAL INSURANCE COMPANY, Intervenor Defendant.
DECISION AND ORDER
William C. Griesbach, Chief Judge
Design Basics LLC; Prime Designs, Inc; and Plan Pros, Inc.
brought this action against Defendants Lexington Homes, Inc.;
Team Stimpson, LLC; Tailwind Crossings, LLC; Ponds of
Menasha, LLC; Fieldstone Investments, LLC; Centennial Centre,
LLC; Jeffrey Marlow; and Michelle Stimpson (the Lexington
Defendants) in 2014. Acuity moved to intervene in the case on
December 12, 2014. On January 17, 2017, the court ordered
Plaintiffs to pay Defendants' reasonably incurred
attorneys' fees and expenses. Defendants now seek a total
of $275, 704.88 in attorneys' fees and other expenses.
For the reasons below, Acuity is entitled to receive
attorneys' fees and other expenses totaling $243, 506.28,
but the Lexington Defendants are not entitled to recover
their requested attorneys' fees.
facts of the underlying action are set forth more fully in
the court's decision and order granting Defendants'
motion for summary judgment. (ECF No. 100.) In brief,
Plaintiffs filed this copyright infringement suit against
Defendants on September 10, 2014. On December 12, 2014,
Acuity moved to intervene in the case, and the Lexington
Defendants tendered the defense to Acuity. On September 29,
2016, the court granted the Lexington Defendants' motion
for summary judgment and dismissed Plaintiff's claims.
The court granted Defendants' motion for attorneys'
fees and expenses under 17 U.S.C. § 505 on January 17,
calculates attorneys' fees using the
“lodestar” amount: “the number of hours
that any attorney worked on the case multiplied by a
reasonable hourly rate.” Jeffboat, LLC v. Director,
Office of Workers' Compensation Programs, 553 F.3d
487, 489 (7th Cir. 2009) (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983); Mathur v. Bd.
of Trs. of S. Ill. Univ., 317 F.3d 738, 742 (7th Cir.
2003)). The court may then adjust the figure depending on a
variety of factors, including the time and labor required,
the novelty and difficulty of the issue, the degree of the
success achieved, the experience and ability of the
attorneys, the amount involved and the results obtained, and
awards in similar cases. Hensley, 461 U.S. at 429-30
n.3. The party seeking an award of attorneys' fees bears
the burden of proving the reasonableness of the fees.
Spegon v. Catholic Bishop, 175 F.3d 544, 550 (7th
Cir. 1999) (citations omitted).
A. Acuity's Attorneys' Fees
seeks a total award of $228, 272.11 in attorneys' fees
which sum represents the work of four law firms. Plaintiffs
argue that Acuity has not shown that these attorneys'
fees are reasonable. A reasonable hourly rate is
“derived from the market rate for the services
rendered.” Pickett v. Sheridan Health Care
Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (quoting
Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir.
2003)). The fee applicant bears the burden of
“produc[ing] satisfactory evidence-in addition to the
attorney's own affidavits-that the requested rates are in
line with those prevailing in the community.”
Id. (quoting Blum v. Stenson, 465 U.S. 886,
895 n.11 (1984)). The court will address the reasonableness
of each firms' fees in turn.
Davis & Kuelthau and von Brissen & Roper,
the defense of this matter was tendered to Acuity, the
Lexington Defendants requested to have Davis & Kuelthau,
their existing attorneys, continue representeing them instead
of counsel appointed by Acuity. (Kowalkowski Decl. ¶ 5,
ECF No. 134.) Acuity allowed Davis & Kuelthau to be its
merits counsel, but not before negotiating a standard billing
rate for its services.
& Kuelthau's attorneys, Frank Kowalkowski and Sherry
Coley, billed the most hours of any of Acuity's attorneys
in this case. Attorney Kowalkowski has been practicing law
for 22 years and Attorney Coley has been practicing law for
11 years. (Id. ¶¶ 3-4.) Their 2014 rates,
the year in which the action was filed, were $310 and $300,
respectively. (Defs.' Reply Br. at 2, ECF No. 133.)
Nevertheless, Acuity agreed to pay an hourly rate of $240 for
any attorney and $125 for any paralegal or librarian working
on the matter. (Id.) As a result, the standard
hourly rates for Davis & Kuelthau attorneys were reduced
anywhere from 20 to 23%.
argue that an hourly rate of $240 for an attorney is
“unbelievably high in the geographic locale of Green
Bay, Wisconsin.” (Pls.' Br. in Opp. at 11, ECF No.
129.) Yet, they do not suggest an alternative billing rate
that would be reasonable. An attorney's “actual
billing rate for comparable work is presumptively appropriate
to use as the market rate.” People Who Care v.
Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir.
1996). The hourly rates requested for Davis & Kuelthau
are below the rate its attorneys normally bill for
comparative work. In short, Acuity has demonstrated that
Davis & Kuelthau's hourly rates are reasonable.
also complain Davis & Kuelthau attorneys used block
billing and vague descriptions to document their time
entries. They claim counsel improperly lumps several tasks
into a single entry without specifying the amount of time
spent on each task and request a blanket fee reduction of
40%. “Although ‘block billing' does not
provide the best possible description of attorneys' fees,
it is not a prohibited practice.” Farfaras v.
Citizens Bank & Trust of Chi., 433 F.3d 558, 569
(7th Cir. 2006). Acuity's counsel submitted a
comprehensive statement of its charges, including the amount
of time spent on ...