United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
ATTORNEYS' FEES AND COSTS (Dkt. No. 192)
KATHERINE A. ROBERTSON United States Magistrate Judge
a jury's verdict for Feed Commodities International,
Inc., the Plaintiff in counterclaim ("Plaintiff"),
this case is before the court on Plaintiff's motion for
attorneys' fees and costs in the amount of $155, 708.42
(Dkt. No. 192). Daniel G. Gray, Matthew C. Gray, and Edwin C.
Gray, Defendants in counterclaim ("Defendants"),
oppose the amount of attorneys' fees that Plaintiff has
requested (Dkt. No. 201). For the following reasons, and as
more fully set forth below, the court denies Plaintiff's
motion without prejudice.
Defendants Original Complaint and Plaintiff's
recitation of the history of this case is necessary to the
court's decision. Defendants are partners who own and
operate Full Flight Game Farm in Bernardston, Massachusetts,
which raises game birds for sale (Dkt. No. 1-1 at
¶¶1, 2; Dkt. No. 116 at ¶ 2). Plaintiff, a
Vermont corporation, sells feed for game birds (Dkt. No. 1-1
at ¶3). "In early June 2010 [Defendants] began
noticing that some of Full Flight Game Farm's four-week
old game birds were showing signs of stunted growth, poor
feather growth, deformities, joint issues that were causing
birds to limp, extra long wing feathers, respiratory issues,
increased water consumption, watery feces and increased
mortality" (id. at ¶8). "At the same
time [Defendants] started noticing a loss in egg production
and hatching issues in their breeders and hatchery"
(id.). Testing determined that the feed that
Plaintiff had delivered in April 2010 did not meet previously
agreed upon specifications and caused the birds' deaths
and deformities, as well as decreased egg production and
other damages (id. at ¶¶5, 7, 11, 13, 15).
Plaintiff delivered an additional load of
out-of-specification feed to Defendants in 2011, which
resulted in losses (id. at ¶23).
originally filed suit against Plaintiff in state court
seeking damages based on breach of contract (count I), breach
of the express warranty (count II), breach of the implied
warranty of fitness for a particular purpose (count III),
breach of the implied warranty of merchantability (count IV),
negligence (count V), and unfair business practices under
Mass. Gen. Laws ch. 93A, § 11 (hereafter "original
case") (Dkt. No. 1-1). Plaintiff removed the original
case from state court to this court on September 11, 2013
(Dkt. No. 1). On October 2, 2013, Attorney Dawn D. McDonald,
who entered her appearance for Plaintiff (Dkt. No. 12),
answered the complaint (Dkt. No. 14), and filed a
counterclaim and a third party complaint against Defendants
(Dkt. No. 13) (hereafter "counterclaim"). In the
counterclaim, Plaintiff alleged that Defendants Edwin C. Gray
and Full Flight Game Farm breached their contract with
Plaintiff (counts I and II), and that Full Flight Game Farm
was unjustly enriched (count III) due to Defendants'
failure to pay for feed that Plaintiff delivered to
Defendants (Dkt. No. 13).
discovery, the original case, which arose from the defective
feed that was delivered in April 2010 and in 2011, was
settled by alternative dispute resolution on June 11, 2015
(Dkt. No. 101; Dkt. No. 116 at 3 n.2). On June 23, 2015,
Plaintiff moved for an order to temporarily restrain the
settlement proceeds (Dkt. No. 104), which this court denied
on July 7, 2015 (Dkt. Nos. 111, 114). On July 17, 2015,
Plaintiff filed an emergency motion to amend the counterclaim
and third party complaint to add trustee defendants (Dkt. No.
115), and moved for trustee process attachment of the
settlement proceeds as security in the event that Plaintiff
obtained a favorable judgment on the counterclaim (Dkt. No.
116). The court allowed the motions on July 23, 2015 (Dkt.
Nos. 123, 124).
moved for summary judgment on the counterclaim in August 2015
(Dkt. No. 134). After a hearing in October 2015, this court
denied the motion and scheduled the trial to begin on
February 22, 2016 (Dkt. Nos. 144, 145).
filed four motions in limine (Dkt. Nos. 151, 152,
153, 168), which the court denied (Dkt. Nos. 163, 164, 166,
188). On February 19, 2016, the court allowed Plaintiff's
emergency ex parte motion to attach Defendants' real
estate (Dkt. Nos. 180, 182). Plaintiff filed a second amended
counterclaim to name the proper parties (Dkt. Nos. 179, 183).
commenced before the court and a jury on February 22, 2016,
and continued on February 23 and 24, 2016, when the jury
returned verdicts for the Plaintiff on all three counts of
the counterclaim (Dkt. No. 198). The jury awarded damages as
follows: $250, 126.10 for the feed that Plaintiff delivered
to Defendants; interest at the rate of 9% per year in the
amount of $104, 422; "attorney fees as described on
[the] credit application and agreement form;" and costs
Plaintiff's Motion for Attorneys' Fees and Costs
and Defendants' Response
submitted a motion for attorneys' fees and costs in the
amount of $155, 708.42 (Dkt. No. 192). The motion was
supported by counsel's affidavit and approximately
fifty-three pages of monthly invoices that counsel submitted
to Plaintiff for services furnished from November 4, 2013
through February 26, 2016 (Dkt. Nos. 192-1, 192-2). The
bills, which were redacted, presumably on the basis of
attorney-client privilege, itemize the dates, the
descriptions of services performed, the individuals who
performed the services, the amount of time each person
expended to perform the tasks, and the charge for the
services based upon each individual's hourly rate (Dkt.
No. 192-2). The invoices separately list the costs that were
incurred during each billing period (id.). Trial
counsel's supporting affidavit states her hourly billing
rate, and the hourly billing rates of four other attorneys
and a paralegal who performed work on the case (Dkt. No.
192-1 at ¶¶3 - 8). Counsel avers that "[t]he
hourly rates charged by counsel in this matter are reasonable
given the experience and skill level of counsel and are
consistent with charges customarily made by law firms
handling matters of this type" and that the hours spent
by counsel are "reasonable based on the complexity of
legal issues, litigiousness of the Defendants and a variety
of delays and procedural problems generated by the
Defendants" (Dkt. No. 192-1 at ¶¶9, 12).
Counsel explained that the cost of securing the presence of
their expert witness from North Carolina was a necessary
trial expense (Dkt. No. 192-1 at ¶10).
objected to the amount of Plaintiff's requested
attorneys' fees (Dkt. No. 201). Defendants' counsel
was not familiar with the qualifications and experience of
the four attorneys who assisted trial counsel and questioned
whether their time was "'excessive, redundant or
otherwise unnecessary'" (Dkt. No. 201 at 3 ¶2).
Defendants asserted that Plaintiff submitted bills for work
that pertained to the original suit, which settled in June
2015 (Dkt. No. 201 at 3 ¶3). According to
Defendants' counsel, who also represented Defendants in
the original case, each party was responsible for its own
fees and costs for the litigation of the original case and
"[t]wo different insurance companies paid legal fees for
occurrences in 2010 and 2011, " which were the subject
of the that suit (id.). In addition, Defendants