Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 1 of 7

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1 Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION STUART C. IRBY COMPANY, INC. PLAINTIFF VS. 4:13-CV BRW BRANDON TIPTON, et al. DEFENDANTS ORDER Pending is Defendants Motion for Attorneys Fees and Costs (Doc. No. 109). Plaintiff has responded. 1 For the reasons set out below, Defendants Motion is GRANTED. I. BACKGROUND Plaintiff filed suit against Defendants asserting claims for breach of contract, tortious interference with business contracts, breach of fiduciary duty, and civil conspiracy. After the parties filed cross motions for summary judgment, I granted summary judgment in favor of Defendants. Defendants now seek $190,820 in attorneys fees, $4, in costs, and $8, in exceptional costs. 2 Plaintiff asserts that Defendants are not entitled to attorneys fees in this case under Section of the Arkansas Code because the contract claim is not the predominate claim. In the alternative, Plaintiff argues, any award should be reduced to $20, in attorneys fees, $3, in costs, and $0 in exceptional costs. 3 1 Doc. No Doc. No Doc. No

2 Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 2 of 7 II. DISCUSSION A. Attorneys Fees under Section of the Arkansas Code Plaintiff argues that Defendants are not entitled to attorneys fees under Section of the Arkansas Code, which reads: In any civil action to recover... for... breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney s fee Plaintiff does not contest that Defendants are the prevailing party in this action to recover for breach of contract. Instead, Plaintiff argues that because the tort claims outnumbered the contract claim 3 to 1, the tort claims predominated. 5 The tort claims albeit outnumbering the contract claim were not the predominate claims. The linchpin of this case was whether Plaintiff s former employees breached a noncompete contract with Plaintiff by going to work for a competitor. Although Plaintiff brought three additional claims (breach of fiduciary duty, tortious interference with a business contract, and civil conspiracy), the additional claims toppled once the contract claim was dismissed. Moreover, Plaintiff s claim for breach of fiduciary duty was brought against only Tipton. The attention dedicated by the parties to the contract claim also demonstrate its predominance. For example, the greatest volley of Defendant s brief in support of summary judgment was aimed at Plaintiff s contract claim. The brief s introductory paragraph reads: if the Treadway Agreements are not enforceable by Irby, all of its claims collapse like a two-dollar 4 Ark. Code Ann Doc. No

3 Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 3 of 7 suitcase. 6 The next 36 pages of the 42-page brief addressed the contract s enforceability. 7 Likewise, in Plaintiff s brief, 8 pages of the 10-page argument section addressed the contract s enforceability. 8 Accordingly, I find Defendants are entitled to an award of reasonable attorneys fees. 9 B. Amount of Attorneys Fees The starting point in determining attorney fees is the lodestar, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates. 10 When determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates Pro Rata Plaintiff argues that if Defendants are awarded a fee, the amount requested should be reduced by 75%, which is the percentage of the tort claims. As noted above, the contract claim was the predominate claim. Accordingly, I decline to reduce the fee award on a pro rata basis. 6 Doc. No The first 34 pages dealt solely with the breach-of-contract claim. The next 3 pages addressed the claim for tortious interference with a business contract, but argued the claim is inextricably tied to the validity and enforceability, by Irby, of the old Treadway Agreements. 8 Doc. No See, e.g., Temple v. Bancinsure, Inc., No. 1:10-CV-01059, 2013 WL (W.D. Ark. 2013) (finding the predominate claim as the claim that took up all but 1 paragraph of a 10- page motion for summary judgment). 10 Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) (quoting Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002)). 11 Id. 3

4 Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 4 of 7 2. Unnecessary Billing Plaintiff asserts that Mr. Langdon s attendance at depositions that Mr. Corum conducted or defended was unnecessary, and requests that I reduce the amount by $3, the amount Mr. Langdon billed for those depositions. Defendants point out that Plaintiff had multiple attorneys attend the same depositions. As I said in the June 10, 2014 Order, I m dubious that it takes more than one high-caliber lawyer to attend a typical deposition, but the presence of more than one Plaintiff s lawyer at these depositions indicates the parties found it reasonable for more than one lawyer to attend. Accordingly, I cannot find that the presence of multiple lawyers at these depositions was unreasonable. As to Plaintiff s argument that Mr. Langdon s time exceeded Mr. Corum s time on deposition dates, I note that the majority of the depositions were taken in Little Rock, Arkansas the same city as Mr. Corum s office. Mr. Langdon s office, on the other hand, is located in Texarkana, Texas. Accordingly, I find the time Mr. Langdon billed for the depositions was reasonable. 3. Second-chair Lawyer Plaintiff asserts that Mr. Langdon played second fiddle to Mr. Corum and requests that I reduce Mr. Langdon s fee by 30%. A review of the record indicates that neither lawyer played second fiddle to the other. Accordingly, I find the requested hourly rates are reasonable. 4. Duplication of Services Plaintiff argues the fee award should be reduced for duplication of services. Plaintiff points out that two different associates spent a total of 3.6 hours preparing jury instructions and that four attorneys attended a 36-minute conference call to discuss the case. I find these hours reasonable. 5. Block Billing and Vague Entries 4

5 Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 5 of 7 Plaintiff asserts that the billing of Mr. Langdon s firm is such that the Court cannot determine what time was spent on what task and the fee request should be reduced by 10%. I find the billing records describe in sufficient detail reasonable work done and reasonable time spent doing it. 6. Clerical Duties Performed by Attorneys Plaintiff asserts that Mr. Langdon spent a total of 24 minutes scanning documents that his secretary could have done, and requests that I reduce the fee awarded by $ Although I think that the majority of document scanning should be done by support staff, I find it reasonable in this case that one attorney spent less than half an hour scanning documents. 7. Excessive Daily Billing Plaintiff argues that time billed in excess of 8 hours a day is unreasonable. Young lawyers might agree with Plaintiff, but I don t. Many families might wish their loved ones spent less time at the office; however, I know from personal experience and observations of others, 8 hours a day won t get it for sho nuff lawyers. Accordingly, I find that Mr. Corum s hours in excess of 8 hours reflect reasonable and necessary work performed in this case. 8. Costs Plaintiff does not object to costs of $4, other than as to Mr. Langdon s expenses to attend the depositions. As noted above, however, I believe that Plaintiff s lawyers doubling up at depositions demonstrates the reasonableness of Defendants lawyers doing the same. Accordingly, I decline to subtract Mr. Langdon s deposition-travel expenses from the costs requested. 9. Use of Private Aircraft 5

6 Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 6 of 7 Defendants request exceptional costs of $8, for use of Wholesale s corporate jet, and suggest this likely reduced the expense and time Defendants lawyers spent traveling to depositions and client interviews. The private airplane was used on four trips. On June 20, 2013, Mr. Langdon flew round trip from Texarkana, Texas to Conway, Arkansas for meetings with clients. On January 15, 2014, Mr. Langdon flew round trip from Texarkana to Little Rock for meetings with clients and Mr. Corum. On February 14, 2014, Mr. Langdon flew from Texarkana to Little Rock to pick up Mr. Corum, and then the two flew round trip from Little Rock to Jackson, Mississippi to take depositions of Plaintiff s representatives. Mr. Langdon then flew from Little Rock to Texarkana. On March 20, 2014, Mr. Langdon flew round trip from Texarkana to Batesville, Arkansas to meet with clients. It appears Mr. Langdon spent 5.9 hours flying, 12 and Mr. Corum spent 1.5 hours, 13 for a total of 7.4 hours. If the lawyers had driven on these trips, which according to Mapquest.com totaled around 2,192 miles, it would have taken about 30.1 hours or $9,030 in attorneys fees. 14 Add travel costs of about $1,227.52, 15 and the total expense would have been $10, Round trip times for his flights are as follows: 1 hour to Conway, 1 hour to Little Rock, 1.4 hours to Batesville, and 2.5 hours to Jackson (through Little Rock). 13 The round trip flight from Little Rock to Jackson took 1.5 hours presumably, 1 hour of that flight was spent flying to and from Little Rock to pick up Mr. Corum. 14 Texarkana to Conway is 167 miles; Texarkana to Little Rock is 144 miles; Texarkana to Jackson is 289 miles; Little Rock to Jackson is 261 miles; and Texarkana to Batesville is 235 miles. Total one way for these trips is 1,096. Double that to include return trips is 2, The IRS has estimated $.56 per mile is the average cost for business travel. According to Mapquest.com, Defendants lawyers would have driven around 2,192 for these trips, which is $1, in mileage. 6

7 Case 4:13-cv BRW Document 118 Filed 06/24/14 Page 7 of 7 The costs of the four flights was $8, Add $2,220 in attorneys fees, 16 and the total expense for flying was $10, Thus, it cost $ more to fly than to drive. Nevertheless, it is unlikely that the lawyers would have spent more than 8.5 hours on the road, taken two depositions, and not stayed overnight in a motel. Even assuming the two shared a room, the difference is a wash. Accordingly, I find the costs are reasonable. CONCLUSION Defendants Motion for Attorneys Fees and Costs is GRANTED. Accordingly, judgment in favor of Defendants against Plaintiff in the amount of $190,820 in attorneys fees, $4, in costs, and $8, in exceptional costs will be entered forthwith. IT IS SO ORDERED this 24th day of June, /s/ Billy Roy Wilson UNITED STATES DISTRICT JUDGE hours at $300 per hour. 7