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Konrath v. Vance

United States District Court, S.D. Indiana, Indianapolis Division

June 8, 2017

GREGORY KONRATH, Plaintiff,
v.
ALLISON VANCE, INDIANAPOLIS MONTHLY, and EMMIS PUBLISHING CORPORATION, Defendants.

          ORDER ON PETITION FOR ATTORNEY FEES AND COSTS

          LARRY J. McKINNEY, JUDGE

         This matter is before the Court on Defendants', Allison Vance, Indianapolis Monthly, and Emmis Publishing Corporation (collectively, the “Defendants”), Petition for Attorney Fees and Costs. Dkt. No. 73. The Defendants prevailed in this action when the Court found against Plaintiff Gregory Konrath (“Konrath”) on the Defendants' Motion to Dismiss, pursuant to Indiana's Anti-SLAPP statute, Ind. Code §§ 34-7-7-1 et seq. See Dkt. No. 70.

         In accordance with the Indiana anti-SLAPP statute, “a prevailing defendant on a motion to dismiss under [the statute] is entitled to recover reasonable attorney's fees and costs.” Ind. Code § 34-7-7-7. The Court also stated in its Order on Anti-SLAPP Motion to Dismiss that the Defendants were entitled to recover their reasonable attorney fees. Dkt. No. 70 at 19.

         The Defendants now seek attorney fees and costs in the amount of $49, 878.80 in light of the Court's order granting their Anti-SLAPP Motion to Dismiss. Dkt. No. 73 at 2. In connection with their Petition for Attorney Fees and Costs, the Defendants provided an affidavit from their counsel, Robert B. Thornburg (the “Thornburg Aff.”), Dkt. No. 74, and an itemized invoice (the “Itemized Invoice”), detailing the services provided by Defendants' counsel and his firm, including costs incurred by the Defendants in relation to this action. Dkt. No. 74, Ex. A. The Thornburg Aff. and Itemized Invoice indicate that work related to this action was performed by Frost Brown Todd LLC, members, Monica L. Dias, Susan Grogan Faller, Charles M. Pritchett, and Robert B. Thornburg, at a billable rate of $285.00 per hour. Thornburg Aff., ¶ 7; Itemized Invoice at 14. Defendants were also charged a billable rate of $225.00 per hour for work performed by Frost Brown Todd LLC, associates, Haley A. Johnston and Jennifer L. Schuster. Thornburg Aff., ¶ 8; Itemized Invoice at 14. Furthermore, work rendered by Frost Brown Todd LLC, paralegal Sarada Rose in connection with this action was billed at a rate of $110.00 per hour. Thornburg Aff., ¶ 9; Itemized Invoice at 14.

         Upon the Court's request, Defendants also provided affidavits from J. Scott Enright and Gerald F. Lutkus to demonstrate the amounts that were billed to and paid by Defendants and the reasonableness the rates charged by Frost Brown Todd LLC, for this action. Dkt. No. 78, Exs. 1 & 2. Defendants further requested that the Court take judicial notice of the Affidavit of Daniel P. Byron that was submitted in connection with CanaRX Services, Inc. v. LIN Television Corp., No. 1:07-cv-1482-LJM-JMS, to establish that the rates assessed for this action were reasonable.[1] Dkt. No. 78, Ex. 3. Konrath made no objection regarding the Defendants' claimed fees and costs.

         When this Court decides substantive issues of state law, state law must also be applied to determine the reasonableness of an attorney fee award. See Dobbs v. DePuy Orthopedics, Inc., 842 F.3d 1045, 1048 (7th Cir. 2016); see also, Fednav Int'l Ltd. v. Continental Ins. Co., 624 F.3d 834, 838-39 (7th Cir. 2010) (applying state law to the determination of reasonable attorney fees where jurisdiction is premised on diversity of citizenship). Indiana Rule of Professional Conduct 1.5(a) (“Rule 1.5(a)”) provides “guidance as to factors to be considered in determining the reasonableness of attorney fees.” Order for Mandate of Funds Montgomery Cty. Council v. Milligan, 873 N.E.2d 1043, 1049 (Ind. 2007). Rule 1.5(a) lists the following non-exhaustive factors for determining whether a fee is reasonable:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers ...

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