United States District Court, D. New Mexico
December 23, 2016
CALMAT CO., Plaintiff,
OLDCASTLE PRECAST, INC.; KRAFT AMERICAS, L.P., a limited partnership; JOHN DOES 1-5; and KRAFT AMERICAS HOLDINGS, INCORPORATED, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Plaintiff CalMat Co.'s
Motion for Attorneys' Fees, Costs, and Expenses (Motion
for Fees and Costs), filed on October 31, 2016. (Doc. 61).
Defendant Kraft Americas Holdings, Inc. (KAHI) filed
objections on November 14, 2016, in which KAHI opposes the
reasonableness of the amount of attorneys' fees sought by
Plaintiff CalMat Co. (CalMat) and requests that the Court
reconsider its decision to pay CalMat's attorneys'
fees and costs from the interpleaded fund. (Doc. 62). CalMat
filed a reply on December 8, 2016. (Doc. 71). Having reviewed
the Motion for Fees and Costs, and the accompanying briefing,
the Court (1) denies the Motion for Fees and Costs without
prejudice to CalMat filing an amended Motion for Fees and
Costs within fourteen days of the entry of this Memorandum
Opinion and Order; and (2) denies KAHI's request for
reconsideration without prejudice to it filing a motion for
reconsideration within fourteen days of the entry of this
Memorandum Opinion and Order.
October 5, 2016, the Court granted CalMat's request for
an award of reasonable attorneys' fees and costs incurred
in bringing this interpleader lawsuit, and determined that
those fees and costs would be paid from the interpleaded
funds. (Doc. 55) at 12. Because CalMat had not filed any
documentation from which the Court could determine the amount
of reasonable attorneys' fees and costs, the Court
ordered CalMat to file a motion for attorneys' fees and
costs, and required CalMat to submit “a supporting
brief, affidavits, and time records to support such an
award….” Id. at 11. In addition, the
Court ordered that the motion for attorneys' fees and
costs include any argument concerning possible reimbursement
of the attorneys' fees and costs to the interpleaded
funds. Id. at 12. Finally, the Court ordered the
parties to “brief the motion for attorney's fees
and costs pursuant to the Local Rules and Federal Rules of
Civil Procedure.” Id. at 13.
CalMat filed its Motion for Attorneys' Fees and Costs, it
submitted an affidavit by attorney Douglas R. Vadnais to
support the motion. Vadnais attests that his hourly rate of
$395.00 and the hourly rate of his co-counsel, Cristina
Mulcahy, of $205.00 “are consistent with the customary
rates charged by attorneys of the same experience and
practice in New Mexico for the type of work involved in this
matter.” (Doc. 61-1) at ¶¶ 6 and 9. Vadnais
did not, however, submit any affidavits to collaborate his
assessment of those hourly rates. Vadnais also attests that,
with respect to the interpleader case, he billed 56.1 hours
of work while Mulcahy billed 50.00 hours of work.
Id. at ¶ 14. Notably, CalMat did not attach the
attorneys' time records. Applying the lodestar
calculation, Vadnais concluded that CalMat incurred $32,
409.50 in attorneys' fees in the interpleader case.
Id. Finally, Vadnais provided evidence that counsel
spent $40.00 related to searches for service of process,
$400.00 to file the interpleader case, and $298.75 to serve
process. Id. at ¶ 16; (Doc. 61-2).
The Lodstar Calculation
initial matter, CalMat suggests in its Motion for Fees and
Costs that it is entitled to attorneys' fees and costs
for both the underlying garnishment lawsuit, 15mc33 WJ, and
this interpleader lawsuit. As described above, the Court
determined that CalMat is entitled to attorneys' fees and
costs for bringing the interpleader lawsuit. Accordingly, the
Court will only award attorneys' fees and costs related
to the interpleader lawsuit.
party requesting attorney's fees bears the burden of
showing that the requested rates are consistent with the
prevailing rates in the community. United Phosphorus,
Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1234
(10th Cir. 2000) (“party requesting the fees bears
‘the burden of showing that the requested rates are in
line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill,
experience, and reputation.'” (citation omitted)).
To carry that burden, the movant must show by
"satisfactory evidence - in addition to the
attorney's own affidavits - that the requested”
hourly rates are the prevailing market rates. Blum v.
Stenson, 465 U.S. 886, 896 n. 11 (1984). Here, CalMat
provided only its own attorney's affidavit to show the
prevailing market rates. That affidavit alone is not
satisfactory evidence of the prevailing market rates.
Rule 54.5(a) provides that a movant for an award of
attorney's fees “must submit” time records.
Local Rule 54.5(b) states that attorneys must also keep
concurrent time records “where there is a potential for
an award of attorney fees.” Despite Local Rule 54.5 and
the Court's Memorandum Opinion and Order requiring that
CalMat provide time records and comply with the Local Rules,
CalMat did not submit time records with its Motion for Fees
and Costs. CalMat argues that it did not provide time records
due to its concern that those records contain information
subject to the attorney-client privilege and that disclosing
the time records would waive the attorney-client
movant bears "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 Cty., Kan., 157
F.3d 1243, 1250 (10th Cir. 1998). The Court also has an
obligation to "carefully scrutinize the total number of
hours reported to arrive at the number of hours that can
reasonably be charged to the losing party, much as a senior
partner in a private firm would review the reports of
subordinate attorneys when billing clients whose fee
arrangement requires a detailed report of hours expended and
work done." Ramos v. Lamm, 713 F.2d 546, 555
(10th Cir. 1983), overruled on other grounds,
Pennsylvania v. Del. Valley Citizens' Council for
Clean Air, 483 U.S. 711 (1987). Despite the movant's
burden and the Court's obligation, the Court recognizes
that attorney's billings and invoices can contain
information protected by the attorney-client privilege.
However, most courts “hold that an attorney's
billings and invoices are protected by the attorney-client
privilege only to the extent they contain confidential
information.” Nat'l Sur. Corp. v. Dustex
Corp., 2014 WL 46541, at *4 (N.D. Iowa) (citations
omitted). Consequently, rather than relying on a blanket
claim of attorney-client privilege, the movant should redact
only those portions of the time records which contain
confidential information. Id. (concluding party
resisting disclosure of time records “may not rely on a
blanket claim of privilege in refusing to produce”
those records and may redact specific entries which contain
confidential information). The Court, therefore, rejects
CalMat's blanket claim of attorney-client privilege as a
reason for not producing the time records. CalMat should,
instead, produce time records with the confidential
information redacted. Of course, “entries that describe
only generally the work performed will not be considered
‘confidential information.'” Id.
foregoing reasons, the Court concludes that it does not have
sufficient evidence from which to determine either the
reasonableness of the requested hourly rates or the
reasonableness of the hours expended in bringing this
interpleader action. Rather than simply denying CalMat's
Motion for Fees and Costs, the Court will deny the Motion for
Fees and Costs without prejudice to CalMat filing an amended
motion with sufficient affidavits and properly redacted time
records to support its request for an award of reasonable
KAHI's Request for Reconsideration
contends in its response that Defendant Old Castle Precast,
Inc. should pay CalMat's attorneys' fees and costs,
and that the Court should, therefore, reconsider its decision
that those fees and costs be paid from the interpleaded fund.
KAHI does not specify what standard for reconsideration the
Court should apply nor does KAHI provide convincing legal
support for its position. Moreover, as CalMat points out, the
better procedural vehicle for KAHI's request for
reconsideration is a separate motion for reconsideration with
full briefing on the issue. The Court will, therefore, deny
KAHI's request for reconsideration without prejudice to
it filing a motion for reconsideration.
Plaintiff CalMat Co.'s Motion for Attorneys' Fees,
Costs, and Expenses (Doc. 61) is denied without prejudice to
CalMat filing an amended Motion for Fees and Costs consistent
with the rulings in this Memorandum Opinion and Order;
KAHI's request for reconsideration is denied without
prejudice to it filing a motion for reconsideration;
above motions must be filed within fourteen days of the entry
of this Memorandum Opinion and Order; and
responses and replies to those motions must be filed as
provided by the Local Rules and the Federal Rules of Civil
 The Court stayed the garnishment
lawsuit on January 27, 2016, pending resolution of this
interpleader lawsuit, which was filed on January 12, 2016.
(Doc. 8), filed in 15mc33 WJ.
 CalMatt, nonetheless, offered to
provide unredacted time records to KAHI and to agree not to
object if KAHI sought to file a surreply to the Motion for
Fees and Costs based on those time records. (Doc. 71) at 3.
CalMat conditioned that offer on KAHI agreeing that the
disclosure of the unredacted time records would not amount to
a waiver of CalMat's attorney-client privilege.
Id. KAHI rejected CalMat's offer.
 Depending on the redactions, the Court
may later require a privilege log.