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

United States District Court, D. Kansas

July 22, 2015

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

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

On March 2, 2015, the Court granted in part and denied in part Plaintiff Boardwalk Apartments, L.C.'s ("Boardwalk") motion for attorneys' fees and expenses.[1] Boardwalk's motion was denied to the extent Boardwalk sought fees incurred in defending the Missouri Litigation. It was otherwise granted with some adjustment by the Court for reasonableness, for a total award of $1, 470, 949.64 in reasonable attorneys' fees and expenses. Boardwalk had also filed a motion to supplement its attorney fee request, which the Court denied without prejudice in order to avoid multiple supplemental fee requests and orders. Instead, the Court ordered Boardwalk to file a single supplemental fee request within twenty-one days of its March 2, 2015 Order for all fees incurred after August 1, 2014. Now before the Court is Boardwalk's Supplemental Motion for Attorney Fees and Expenses (Doc. 450), and Defendant State Auto Property and Casualty Insurance Company's ("State Auto") Motion to Take Judicial Notice of Court Filings and Divestiture of Jurisdiction (Doc. 457). These matters are fully briefed and the Court is prepared to rule. As explained more fully below, the Court denies State Auto's motion and exercises its jurisdiction to rule on the supplemental fee request as a collateral matter. Boardwalk's supplemental fee request is granted and Boardwalk is awarded an additional $346, 005.82 in reasonable attorneys' fees and expenses.

I. Background

This insurance dispute proceeded to jury trial on June 24, 2014. The jury returned verdicts in favor of Boardwalk on both of its breach of contract claims, calculating damages for each claim and awarding consequential damages. This Court thereafter ruled on the parties' post-trial motions, ordering remittitur of the consequential damages award as an alternative to a new trial, and awarding Boardwalk prejudgment interest on the business income claim. An Amended Judgment was entered on January 16, 2015, for $4, 797, 479.20.[2]

Boardwalk timely filed its Motion for Attorneys' Fees and Expenses within fourteen days of the entry of the original Judgment on the verdict.[3] After receiving one extension of time, Boardwalk timely filed its memorandum in support of the motion for attorneys' fees on September 5, 2014.[4] State Auto filed its timely opposition to Boardwalk's attorneys' fee motion, as well as several other motions tied to the fee request, such as a motion to strike Kevin Bielawski's Affidavit that Boardwalk relied upon in support of its requested rates, and a motion for discovery. The Court denied these ancillary motions.

On November 14, 2014, Boardwalk moved to supplement its pending fee request to include fees and expenses incurred since the time its original memorandum in support of the fee request was filed on September 5, 2014. These supplemental fees were incurred between August 1 and October 31, 2014. State Auto objected to supplementation, arguing that D. Kan. Rule 54.2 does not provide for supplementation, and that it must be allowed to respond to any supplemental fee request in writing. It suggested that allowing Boardwalk to supplement its fee request on an ad hoc and piecemeal basis is unfair and contrary to judicial efficiency and economy.

The Court granted State Auto's request under Fed.R.Civ.P. 58(e), to allow Boardwalk's motion for attorneys' fees to have the same effect under Fed. R. App. P. 4(a)(4) as a timely motion under Rule 59, thus tolling State Auto's time for filing an appeal until the Court ruled on Boardwalk's motion for attorneys' fees.

In a March 2, 2015 Memorandum and Order, the Court granted in part and denied in part Boardwalk's motion for attorneys' fees and expenses, awarding reasonable attorneys' fees and expenses through July 31, 2014.[5] The Clerk was directed to file a Second Amended Judgment to reflect this award. With regard to the supplemental fee request, the Court ruled as follows:

The Court finds that Boardwalk is entitled to all reasonable fees and expenses incurred in this lawsuit under ยง 40-908, including time spent on post-trial motions and litigating the request for attorney fees. The Court declines to penalize Boardwalk for timely submitting its memorandum in support of attorneys' fees. However, the Court will grant State Auto's alternative request to consider a single supplement to the original fee request in the interest of judicial economy, with certain provisions. First, this ruling will have no effect on the Court's prior ruling that the original motion under Rule 54 will abate the appeal time. The supplemental fee request will be decided collateral to the Second Amended Judgment. Second, while the Court finds that State Auto should have a full and fair opportunity to respond to the specific fees sought in the supplemental motion, the Court expects the argumentation on these supplemental fees to be extremely brief in comparison to the instant motion, and to focus primarily on any arguments not already raised and addressed by the Court's reasonableness rulings below. Therefore, Boardwalk's motion for leave to supplement is granted in part and denied in part. It shall file a single supplemental motion for attorneys' fees within 21 days of this Order for all compensable work performed since August 1, 2014, attaching supplemental time sheets and any other necessary exhibits that are not already included in the original motion.... State Auto may file a response to this supplemental motion within fourteen days.[6]

The Second Amended Judgment was entered on March 2, 2015.[7] State Auto filed a Notice of Appeal on March 31, 2015.[8]

Boardwalk followed the Court's directive and timely filed its supplemental request for attorneys' fees, seeking $388, 830.60 in fees and $1340.82 in expenses incurred between August 1, 2014 and March 23, 2015. The fee request is based on the same hourly rates that the Court previously found to be reasonable. It seeks fees expended on: (1) litigating the motion for attorneys' fees; (2) litigating other post-trial motions; (3) litigating State Auto's motions on tolling the appeal time, staying execution, and avoiding a bond requirement; and (4) preparing a bill of costs.

II. Jurisdictional Question

State Auto requests the Court take judicial notice of certain filings in this case and of the fact that this Court is divested of jurisdiction to rule on the supplemental motion for attorneys' fees and expenses. While the Court can certainly take judicial notice of its own files and records, [9] State Auto points the Court to no authority for the proposition that a jurisdictional determination is appropriately handled through judicial notice.[10] Instead, the Court construes State Auto's request as a motion to either dismiss or hold in abeyance the supplemental fee request for lack of jurisdiction.

State Auto argues that this Court only retains jurisdiction over matters not raised in the appeal. Because State Auto's appeal includes the March 2, 2015 fee award, it contends that the supplemental fee motion can not be considered collateral. Boardwalk responds that the supplemental fee request is entirely ...


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