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Boardwalk Apartments, L.C. v. State Auto Property and Casualty Insurance Co.

United States District Court, D. Kansas

October 24, 2014

BOARDWALK APARTMENTS, L.C., Plaintiff,
v.
STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This insurance coverage action was tried to a jury, which found in favor of Plaintiff Boardwalk Apartments, L.C. ("Boardwalk") on its claims of breach of contract under Kansas law against Defendant State Auto Property and Casualty Insurance Company ("State Auto"). Plaintiff Boardwalk filed a posttrial motion for attorneys' fees (Doc. 349) that is now fully briefed. Before the Court are several motions filed by State Auto that are related to the fee dispute: Motion to Strike Affidavit of Kevin Bielawski (Doc. 394); Motion to Conduct Discovery Pursuant to D. Kan. 54.2(f) (Doc. 397), and Motion for Oral Argument (Doc. 399). These fee-related motions are ripe for decision and the Court is prepared to rule. As described more fully below, the Court denies State Auto's motions for discovery and to strike the Bielawski affidavit, and will consider Boardwalk's motion for attorneys' fees submitted on the briefs.

I. Procedural Posture and Relevant Background

Some discussion of the proper procedure for requesting and disputing attorneys' fees in this District is warranted. Fed.R.Civ.P. 54(d)(2)(B)(i) provides that a claim for attorneys' fees and expenses may be made by motion no later than fourteen days after the entry of judgment. And "by local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings."[1] The District of Kansas has adopted such procedures in Local Rule 54.2:

(a) Consultation Required. A party who moves for statutory attorney's fees pursuant to Fed.R.Civ.P. 54(d)(2) must promptly initiate consultation with the other party or parties.
(b) Where the Parties Agree. If the parties reach agreement, they must file an appropriate stipulation and request for an order.
(c) Where the Parties Disagree. If they are unable to agree, the moving party must file the following within 30 days of filing the motion:
(1) a statement that, after consultation in accordance with this rule, the parties have been unable to reach an agreement with regard to the fee award; and
(2) a memorandum setting forth the factual basis for each criterion that the court is asked to consider in making an award.
(d) Statement of Consultation. The statement of consultation must set forth the date of the consultation, the names of those who participated, and the specific results achieved. The court will not consider a motion for statutory attorney's fees made pursuant to Fed.R.Civ.P. 54(d)(2) until the moving party files the statement of consultation in compliance with this rule.
(e) Memorandum and Response. The memorandum in support of the Fed.R.Civ.P. 54 motion must be supported by time records, affidavits, or other evidence. The memorandum need not be filed at the same time as the motion. This is an exception to D. Kan. Rule 7.1(a). Other parties have 14 days to file a response to the memorandum in compliance with this rule.
(f) Discovery. Discovery may not be conducted in connection with motions for awards of attorney's fees unless the court permits upon motion and for good cause.

In this case, Boardwalk timely filed its Motion for Attorneys' Fees and Expenses within fourteen days of the entry of Judgment.[2] After receiving one extension of time, Boardwalk timely filed its memorandum in support of the motion for attorneys' fees on September 5, 2014.[3] That memorandum properly includes a statement of consultation pursuant to Rule 54.2(c)(1), setting forth the parties' attempts to meet and confer concerning the fee request and stating that the parties were unable to reach an agreement. Boardwalk's memorandum proceeds to set forth argument in support of its fee request and it attached over fifty exhibits, including Exhibit 2, the Affidavit of Kevin Bielawski, Director of Strategic Pricing and Analytics for Husch Blackwell, Boardwalk's counsel's law firm. Boardwalk also attached several exhibits upon which Bielawski relies: Exhibit G, PricewaterhouseCooper's Billing Rate and Associate Salary Survey ("BRASS"); Exhibit H, annual totals for each timekeeper's rate, hours, and dollars billed; and Exhibit I, a line-graph comparison of the rates charged on the Boardwalk matter and median attorney and paralegal rates for several regions in and around Kansas City, based on the BRASS survey. Boardwalk submitted the Bielawski Affidavit in support of its claim that the rates charged by its attorneys are reasonable.

State Auto filed its opposition to Boardwalk's attorneys' fee motion and has submitted several other motions tied to the fee request that the Court will resolve in this Order. First, State Auto asks that the Court strike the Bielawski Affidavit because it was not previously disclosed. Second, State Auto asks the Court to permit several categories of discovery on the issue of attorneys' fees, including discovery concerning Bielawski. ...


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