United States District Court, D. Kansas
TRI-STATE TRUCK INSURANCE, LTD., TST, LTD., and ANDREW B. AUDET, Plaintiffs,
BANK OF THE FLINT HILLS, et al.,  Defendants.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This case comes before the Court on TST's motion (Dk. 179) to alter or amend judgment, and on the issue of attorneys' fees (Dk. 171, 174).
I. Motion to Alter or Amend
To prevail on this motion, TST must establish either "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). TST asserts the latter.
"A Rule 59(e) motion... is designed to permit relief in extraordinary circumstances and not to offer a second bite at the proverbial apple." Syntroleum Corp. v. Fletcher Int'l, Ltd., 2009 WL 761322 (N.D.Okla. Mar. 19, 2009). Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996), cert. denied, 520 U.S. 1181 (1997). Yet that is precisely what TST does in this motion.
After reviewing the arguments presented by TST in support of the motion, the Court finds that TST's motion is premised on its disagreement with the court's previous findings and interpretation, application, and conclusions of law. TST has demonstrated no reason for the Court to alter or amend its judgment or to make additional findings or rulings. Because the parties have repeatedly demonstrated their penchant for construing language in sharply conflicting ways, the Court believes that an economy of words is appropriate. Therefore, for the reasons stated by the Court in its prior rulings (Dk. 176, 166) as well as those stated in Flint Hills' brief (Dk. 186), the Court finds no basis for granting this motion.
II. Attorneys' Fees
The Court's order dated March 18, 2014 (Dk. 166) required the parties to confer regarding the amount of reasonable attorneys' fees TST owes to Flint Hills and Gibson, and to notify the Court by a specified date whether or not an agreement had been reached. The parties were unable to reach an agreement on fees so the court established a briefing schedule, and the issue is now ripe for decision. The parties are familiar with the prior decisions in this case and the underlying facts. Further, the Court has previously addressed the legal standard, the burden of proof, and the factors in determining the reasonableness of fess, so will not repeat those herein.
Flint Hills seeks its attorney fees as part of the merits of its breach of contract counterclaim. The provision of the CLA upon which Flint Hills relies in seeking attorneys' fees states in relevant part:
COLLECTION EXPENSES AND ATTORNEYS' FEES.
To the extent permitted by law, Borrower agrees to pay all expenses of collection, enforcement and protection of Lender's rights and remedies [under] this Agreement. Expenses include, but are not limited to, reasonable attorneys' fees including attorney fees as permitted by the United States Bankruptcy Code, court costs and other legal expenses.
Dk. 76, Exh. 4, para. 34.
A. Flint Hills' Fees
TST does not generally challenge the reasonableness of the hourly rates Flint Hills' attorneys charged, the adequacy of the billing records (with some exceptions noted below), or its duty to pay interest on the expenses Flint Hills incurred as a result of this dispute.
1. Pennsylvania Cases
TST contends that White's fees, portions of Denton's fees, and portions of Spencer Fane's fees are unreasonable because they are attributable to unsuccessful legal work on related Pennsylvania cases. But TST does not contend that those fees were not "expenses of collection, enforcement and protection of Lender's rights and remedies" under the Loan Agreement.
TST contends that Flint Hills' attorneys' fees for its unsuccessful litigation in two Pennsylvania cases are unreasonable. In Bucks County case No. 2009-10141-35, Flint Hills moved to intervene, filed a motion to strike or open the default judgment, prepared a praecipe, and prepared a petition seeking relief from the default judgment. None of those efforts succeeded. Flint Hills also filed a separate Pennsylvania case against TST, a "complaint in equity, " which the court dismissed because Flint Hills failed to prosecute it. (Bucks County case No. 2011-08872).
In support of its position that fees should be reduced to account for unsuccessful efforts, TST cites § 1988 cases which award fees to "prevailing parties." See Dk. 177, p. 9. Although fees in this case are not pursuant to a fee-shifting statute or any "prevailing party" language, the "results obtained" are a relevant factor in determining the reasonableness of fees in this case. See U.S. for Use of ...