United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S RENEWED
MOTION FOR ATTORNEYS' FEES AND COSTS (DKT. NO.
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 renewed
motion for attorneys' fees and costs in the amount of
$152, 168.42 (Dkt. No. 204). For the following reasons, and
as more fully set forth below, the court allows
Plaintiff's renewed motion, as modified.
Defendants' Original Complaint and Plaintiff's
recitation of the history of this case is necessary to the
court's decision. Daniel G. Gray, Matthew C. Gray, and
Edwin C. Gray, defendants-in-counterclaim
("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 (count VI) (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 and requested an equitable attachment
(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 pre-trial motions (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 First Motion for Attorneys' Fees and
Costs, Defendants' Response, and the Court's
February 26, 2016, Plaintiff submitted a motion for
attorneys' fees and costs in the total amount of $155,
708.42 (Dkt. No. 192). The motion was supported by the
affidavit of lead counsel, Attorney McDonald, 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 on the basis of
attorney-client privilege, itemized 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; Dkt. No. 204-2 ¶8 n.2). Attorney
McDonald's supporting affidavit stated her hourly billing
rate, and the hourly billing rates of four other attorneys
and a paralegal from her law firm who performed work on the
case (Dkt. No. 192-1 at ¶¶3 - 8). The invoices
separately listed the costs that were incurred during each
billing period (Dkt. No. 192-2). 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
objected to the amount of Plaintiff's requested
attorneys' fees, $148, 939, but did not quibble about the
payment of the amount of costs that Plaintiff submitted, $6,
769.42 (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
objected to the amount of time that was billed for litigation
of the counterclaim on the grounds that the case was not
complex and the parties stipulated to certain evidence
(id. at 4 ¶¶4, 5, 6).
on Defendants' arguments and the lack of detailed support
for the Plaintiff's attorneys' hourly rates, the
court denied Plaintiff's original motion for fees and
costs, without prejudice, on June 6, 2016 (Dkt. No. 203).
Plaintiff's Renewed Motion for ...