Gaines et al v. Moore City of et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BRYAN GAINES, in his individual
capacity and Personal Representative
of the Estate of EMILY GAINES, et al.,
Plaintiffs,
v.
CITY OF MOORE, a municipal
corporation, et al.,
Defendants.
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Case No. CIV-20-851-D
ORDER
Before the Court is Defendant City of Moore’s (the “City”) Application for
Attorneys’ Fees and Costs [Doc. No. 125]. Plaintiffs’ counsel, Chris Hammons and Jason
Hicks, filed a response [Doc. No. 126], to which the City replied [Doc. No. 127]. The
matter is fully briefed and at issue.
BACKGROUND
This case stems from a tragic car accident. On the morning of December 14, 2019,
Kyle Lloyd, a Moore police officer, was at home when he received a phone call from
another officer who had locked his keys in his police car. That officer told Mr. Lloyd to
bring a spare key to a Chick-Fil-A in Moore and that he needed to hurry. Mr. Lloyd left his
home in his personal vehicle. While driving to Chick-Fil-A, Mr. Lloyd exceeded the posted
speed limit of 50 miles per hour. As Mr. Lloyd approached the intersection of South Sooner
Road and SE 134th St., he was traveling 94 miles per hour. Before Mr. Lloyd reached the
intersection, he applied his brakes. Unfortunately, Mr. Lloyd collided with a vehicle driven
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by Emily Gaines, who was on her way to take the ACT college admission exam. At the
moment of the collision, Mr. Lloyd was travelling 77 miles per hour. Ms. Gaines died at
the scene of the accident.
The Court need not provide a comprehensive procedural history here.1 For purposes
of this order, the following procedural events are relevant:
• 	On August 11, 2023, the City filed a motion for summary judgment [Doc.
No. 96].
• 	On September 14, 2023, Plaintiffs filed a response to the City’s motion for
summary judgment [Doc. No. 103]. To support their response, Plaintiffs
attached an affidavit from Officer David Roberts, an Oklahoma City police
officer. The substance of Officer Roberts’ affidavit supported Plaintiffs’
allegation that Mr. Lloyd had previously been pulled over by Officer Roberts
while driving 127 miles per hour. Plaintiffs had never formally identified
Officer Roberts as a potential witness or disclosed the specific factual details
included in his affidavit.
• 	On September 21, 2023, the City filed its motion to strike Officer Roberts’
affidavit [Doc. No. 106]. As part of its motion, the City sought attorney fees
and 	costs 	associated 	with 	anticipated 	discovery 	and 	motion 	practice
stemming from Plaintiffs’ counsel’s failure to disclose Officer Roberts.
• 	On December 15, 2023, the Court granted in part and denied in part the City’s
motion to strike [Doc. No. 115]. As part of that order, the Court, pursuant to
F ED . R. CIV . P. 37(c)(1) and the Court’s inherent authority, ordered Plaintiffs’
counsel to “pay the attorney fees and costs incurred by the City in filing this
Motion and its reply.” Id. at 9. The Court further ordered Plaintiffs’ counsel
to “pay the costs associated with Officer Roberts’ deposition, should the City
elect to depose him” and required the City to “file an application for costs
and attorney fees within fourteen (14) days of Officer Roberts’ deposition.”
Id.
• 	On February 23, 2024, the City filed the instant application [Doc. No. 125].
The City seeks $12,702 in attorney fees and $293.66 in costs. Id.
1 A more detailed procedural history can be found in the Court’s order on the City’s previously
filed motion to strike [Doc. No. 115].
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DISCUSSION
As an initial matter, the Court rejects Plaintiffs’ counsel’s argument that, because
the City took short depositions of Officer Roberts and Officer Sexton (which purportedly
did not confirm anything beyond what was contained in Officer Roberts’ affidavit), the
Court should decline to award attorney fees and costs. See Pls.’ Resp. at 3-7. Further, the
Court rejects Plaintiffs’ counsel’s argument that the Court should decline to award attorney
fees and costs because the City did not serve additional discovery requests. See id. at 7-10.
Each argument misses the mark. The Court is awarding the City attorney fees and costs
because the City was forced to prepare and file a document—its motion to strike—as a
result of Plaintiffs’ counsel’s “clear failure to disclose Officer Roberts at numerous points
during this case.” See 12/15/2023 Order at 7. As part of its order, the Court also provided
the City the chance to conduct any additional discovery it deemed necessary. The City did
so. The Court will not second guess the City’s litigation strategy.2
Moving to the reasonableness of the City’s attorneys’ hourly rates, the City seeks
recovery of Blaine Nice’s and Dane Miller’s time spent preparing the City’s motion to
strike and the costs associated with deposing Officer Roberts. City’s App. Att’y Fees, Ex.
1 [Doc. No. 125-1] at 4-6. Mr. Nice’s hourly rate was $345, while Mr. Miller’s was $240.
Id. at 5. The Court is familiar with the rates charged by lawyers in the Oklahoma City
2 Indeed, the City provides a reasonable explanation as to why the depositions were short and no
additional discovery was served: “The simple reason for the brief duration of depositions and no
additional discovery being issued is that neither Officer Roberts nor Mark Sexton possessed any
information which supports Plaintiffs’ claims.” City’s Reply at 2. To be clear, the Court, for
purposes of this order, takes no position on the substance of the City’s explanation. However, the
City’s belief provides a reasonable basis for the lack of further in-depth discovery.
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metropolitan area, and concludes that the rates charged by Mr. Nice and Mr. Miller are
reasonable.
As for the reasonableness of the attorney fees sought, the Court finds that several of
defense counsel’s time entries lack sufficient detail to allow the Court to determine the
reasonableness of the time spent preparing the City’s motion to strike. Defense counsel
“has 	the 	burden 	of 	proving 	hours 	to 	the 	district 	court 	by 	submitting 	meticulous,
contemporaneous time records that reveal, for each lawyer for whom fees are sought, all
hours for which compensation is requested and how those hours were allotted to specific
tasks.” Case v. Unified Sch. Dist. No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1250 (10th
Cir. 1998). The Court must scrutinize such records to “ensure that the . . . attorneys have
exercised ‘billing judgment’” by “winnowing the hours actually expended down to the
hours reasonably expended.” Id. (quoting Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.
1983)).
Although billing records should not, and could not possibly, include every detail of
every task undertaken, the records are expected to be “meticulous.” See Terra Venture Inc.
v. JDN Real Estate-Overland Park, L.P., 242 F.R.D. 600, 604 (D. Kan. 2007). Defense
counsel’s billing records are, for the most, sufficiently meticulous. However, a number of
entries lack clarity that would allow the Court to determine how much time spent was
associated with the City’s motion to strike, as opposed to other legal work. For instance,
on September 17, 2023, Mr. Miller billed 4 hours associated with the following time entry:
“WORK ON OUTLINES FOR MOTION TO STRIKE AND REPLY TO MOTION FOR
SUMMARY JUDGMENT.” City’s App. Att’y Fees, Ex. 1 at 4 (emphasis in original). As
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another example, on September 20, 2023, Mr. Miller billed 9.3 hours associated with the
following time entry: “CONTINUE DRAFTING MOTION TO STRIKE AND MOTION
FOR 	SANCTIONS; 	BEGIN 	DRAFTING 	REPLY 	IN 	SUPPORT 	OF 	SUMMARY
JUDGMENT.” Id. (emphasis in original). The City’s summary judgment briefing is beyond
the scope of the Court’s order, and, based on the referenced time entries, it is impossible to
discern how much of the 13.3 total hours was spent on the motion to strike versus summary
judgment briefing.
Clearly, Plaintiffs’ counsel’s failure to disclose Officer Roberts required the City to
incur otherwise unnecessary attorney fees. But, without the meticulous detail and clarity
required, the Court is unable to assess the reasonableness of numerous time entries and
agrees with Plaintiffs’ counsel that, on its face, $12,702 spent in preparing the motion to
strike is unreasonable. The Court will, therefore, apply a 50% deduction to the $12,702
sought, which reduces the City’s attorney fee award to $6,351. See Okla. Nat’l Gas Co. v.
Apache Corp., 355 F. Supp. 2d 1246, 1265 (N.D. Okla. 2004) (“Instead, the undersigned
will adopt the tack taken by courts that have used a general reduction to compensate for
hours not properly recorded.”) (citing cases).
The Court further finds that the City’s costs associated with deposing Officer
Roberts are reasonable.
CONCLUSION
For these reasons, the City’s Application for Attorneys’ Fees and Costs [Doc. No.
125] is GRANTED IN PART and DENIED IN PART.
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IT IS THEREFORE ORDERED that Plaintiffs’ counsel shall pay $6,644.66 (the
reduced attorney fee amount plus $293.66 in costs) to the City’s attorneys within thirty (30)
days of this order. Plaintiffs’ counsel’s failure to comply with the 30-day deadline may
result in monetary or non-monetary sanctions, to be determined by the Court based on the
circumstances of the violation.
IT IS SO ORDERED this 22nd day of March, 2024.
TIMOTHY 	. DeGIUSTI
Chief United States District Judge
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