Expenses.
(a) Definitions. For purposes of this rule:
(1) “Fee Motion” means a motion, complaint or any other pleading
seeking only an award of attorney’s fees and related nontaxable expenses;
(2) “Movant” means the party filing the Fee Motion;
(3) “Respondent” means a party from whom the movant seeks
payment; and
(4) “Related nontaxable expenses” means any expense for which a
prevailing party may seek reimbursement other than costs that are taxed by
the clerk pursuant to Fed. R. Civ. P. 54(d)(1).
(b) Time to File. Either before or after the entry of judgment, the court
may enter an order with respect to the filing of a Fee Motion pursuant to Fed. R.
Civ. P. 54. Unless the court’s order includes a different schedule for such filing,
the motion shall be filed in accordance with the provisions of this rule and shall be
filed and served within forty-nine (49) days after the entry of the judgment or
settlement agreement on which the motion is founded. If the court has not entered
such an order before a motion has been filed pursuant to Fed. R. Civ.,
P. 54(d)(2)(B), then after such filing the court may order the parties to comply with
the procedure set out in this rule as a post-filing rather than as a pre-filing
procedure.
(c) Effect on Appeals. The filing of a Fee Motion shall have no effect on
the time for appeal of any judgment on which the motion is founded. This rule
does not change the time requirements of Fed. R. Civ. P. 59.
(d) Pre-Motion Meet and Confer. Prior to filing a Fee Motion, the
parties involved shall meet and confer in a good faith attempt to agree on the
amount of fees or related nontaxable expenses that should be awarded.
During the attempt to agree, the parties shall provide the following
information to each other:
(1) The movant shall provide the respondent with the time and
work records on which the motion will be based and shall specify the hours
for which compensation will and will not be sought. These records may be
redacted to prevent disclosure of material protected by the attorney-client
privilege or work product doctrine.
(2) The movant shall inform the respondent of the hourly rates that
will be claimed for each lawyer, paralegal, or other person. If the movant’s
counsel has been paid on an hourly basis in the case in question, records
showing the rates paid for those services must be provided. If the movant
will rely on other evidence to establish appropriate hourly rates, such as
evidence of rates charged by attorneys of comparable experience and
qualifications or evidence of rates used in previous awards by courts or
administrative agencies, the movant shall provide such other evidence.
(3) The movant shall furnish the evidence that will be used to
support the related nontaxable expenses to be sought by the motion.
(4) The movant shall provide the respondent with the above
information within fourteen (14) days after the judgment upon which the
motion is based, unless the court sets a different schedule.
(5) If no agreement is reached after the above information has been
furnished, the respondent shall, within fourteen (14) days of receipt of that
information, disclose any evidence the respondent will use to oppose the
requested hours, rates, or related nontaxable expenses.
Seven (7) days after the above exchange of information is completed and
before the motion is filed, the parties shall specifically identify all hours,
billing rates, or related nontaxable expenses (if any) that will and will not be
objected to, the basis of any objections, and the specific hours, billing rates,
and related nontaxable expenses that in the parties’ respective views are
reasonable and should be compensated. The parties will thereafter attempt
to resolve any remaining disputes.
All information furnished by any party under this section shall be treated as
strictly confidential by the party receiving the information. The information
shall be used solely for purposes of the fee litigation, and shall be disclosed
to other persons, if at all, only in court filings or hearings related to the fee
litigation. A party receiving such information who proposes to disclose it in
a court filing or hearing shall provide the party furnishing it with prior
written notice and a reasonable opportunity to request an appropriate
protective order.
(e) Joint Statement. If any matters remain in dispute after the above
steps are taken, the parties, prior to the filing of the Fee Motion, shall prepare a
joint statement listing the following:
(1) The total amount of fees and related nontaxable expenses
claimed by the movant (if the fee request is based on the “lodestar” method,
the statement shall include a summary table giving the name, claimed hours,
claimed rates, and claimed totals for each biller);
(2) The total amount of fees and/or related nontaxable expenses
that the respondent deems should be awarded (If the fees are contested, the
respondent shall include a similar table giving respondent’s position as to the
name, compensable hours, appropriate rates, and totals for each biller listed
by movant); and
(3) A brief description of each specific dispute remaining between
the parties as to the fees or expenses and all matters agreed upon.
The parties shall cooperate to complete preparation of the joint statement
within forty-two (42) days after the entry of the judgment or settlement
agreement on which the motion for fees will be based, unless the court
orders otherwise.
(f) Fee Motion.
The movant shall attach the joint statement to the Fee Motion. Unless
otherwise allowed by the court, the motion and any supporting or opposing
memoranda shall limit their argument and supporting evidentiary matter to
disputed issues. The memorandum in support of the Fee Motion, shall, as
necessary to address the disputed issues, set forth the nature of the case; the
claims as to which the movant prevailed; the claims as to which the movant
did not prevail; the applicable authority entitling the movant to the requested
award; a description of the work performed by each timekeeper, broken
down by hours expended on each task; the timekeeper’s customary fee for
like work; the customary fee for like work prevailing in the community; any
additional factors required by case law; a listing, in sufficient detail to enable
the court to rule on the reasonableness of the request, of any expenditures for
which reimbursement is sought; and any additional factors the movant
wishes to bring to the court’s attention.
(1) Summary Table. Counsel must provide a table that
summarizes the total fees requested in the Fee Motion. The summary table
must, at a minimum, include the following columns:
(A) Timekeeper;
(B) Rate;
(C) Hours;
(D) Total fees requested.
Sample:
Timekeeper Rate Hours Total Requested
Attorney 1 $350.00 100 $35,000
Attorney 2 $225.00 100 $22,500
Attorney 3 $190.00 100 $19,000
Paralegal $110.00 100 $11,000
(2) Itemization of Work Performed. Counsel must submit a
chart describing the services rendered in chronological order that includes, at
minimum, the following columns:
(A) Date;
(B) Timekeeper;
(C) Hours billed;
(D) Description of services rendered.
Sample:
Date Timekeeper Hours Description of
Services Rendered
02/01/2019 Attorney 1 7.8
02/01/2019 Attorney 2 1
02/02/2019 Attorney 3 0.8
02/03/2019 Paralegal 0.2
(3) Description of Services Rendered.
The party seeking an award of fees must describe adequately the services
rendered, so that the reasonableness of the requested fees can be evaluated. In
describing such services, counsel should be sensitive to information protected by
the attorney-client privilege or the attorney work product doctrine, but must
nevertheless furnish an adequate non-privileged description of the services in
question. If the time descriptions are incomplete, or if such descriptions fail to
describe adequately the services rendered, the court may reduce the award
accordingly. For example, time entries for telephone conferences must include an
identification of all participants and the reason for the call; entries for legal
research must include an identification of the specific issue researched and, if
possible, should identify the pleading or document for which the research was
necessary; entries describing the preparation of pleadings and other documents
must include an identification of the pleading or other document prepared and the
activities associated with such preparation. Block billing is not permitted, and
block billed entries may be partially or completely excluded by the court.
(4) Description of Expenses Incurred.
In addition to identifying each requested nontaxable expense, the movant
shall set forth the applicable authority entitling the movant to such expense and
should attach copies of invoices and receipts, if possible.
(5) Affidavit of Counsel.
The Fee Motion shall be supported by an affidavit of counsel that includes:
(A) A brief description of the relevant qualifications,
experience, and case-related contributions of each timekeeper for
whom fees are claimed, as well as any other factors relevant to
establishing the reasonableness of the requested rates;
(B) A statement that the affiant has reviewed and approved
the time and charges set forth in the itemization of work performed
and that the time spent and expenses incurred were reasonable and
necessary under the circumstances; and
(C) A statement identifying all adjustments, if any, made in
the course of exercising “billing judgment.”
(g) Responsive and Reply Memoranda.
Unless otherwise ordered by the court, any opposing party may file and
serve a responsive memorandum within seven (7) days after service of the Fee
Motion. The responsive memorandum in opposition to a Fee Motion shall identify
with specificity all disputed issues of law and fact, each disputed time entry, and
each disputed expense item. The movant, unless otherwise ordered by the court,
may file and serve a reply memorandum within seven (7) days after service of the
responsive memorandum. Thereafter, unless otherwise ordered by the court, the
motion and supporting and opposing memoranda will be taken under advisement
and a ruling will be issued without a hearing.
(h) Court’s Discretion to Deny with Prejudice.
Failure to follow these rules regarding Fee Motions and/or related
nontaxable expenses may, in the court’s discretion, result in the denial of such
motions with prejudice.
(i) Referral to Magistrate Judge.
Unless otherwise ordered, a post-verdict or post-judgment Fee Motion shall
automatically be referred to the magistrate judge assigned to the case pursuant to
Fed. R. Civ. P. 54(d). Parties may consent to having the assigned magistrate judge
enter a final order dispositive of the motion by submitting a completed Notice,
Consent, and Reference of a Dispositive Motion to a Magistrate Judge, Form
HID 85A, to the clerk of court.
(j) Additional Matters.
At any time, the court may require, or the parties may request, a settlement
conference to attempt to resolve the fees dispute by agreement. The parties may
obtain relief from the time schedule set forth in this rule with the approval of the
court.
