The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court is Plaintiffs Trustees of the Carpenters' Health and Welfare Trust Fund of St. Louis Bill of Costs and motion for attorneys' fees (Doc. 41). Defendant Darr objects to the Bill of Costs and motion for attorneys' fees (Doc. 55 & 56). The matter is fully briefed and the Court rules as follows.
In an action under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(3) (ERISA), "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1). "There is a 'modest presumption' in favor of awarding fees to the prevailing party, but that presumption may be rebutted."Laborers' Pension Fund v. Lay-Com, Inc., 580 F.3d 602, 615 (7th Cir. 2009); (quoting Senese v. Chicago Area I.B. of T. Pension Fund, 237 F.3d 819, 826 (7th Cir. 2001)); Harris Trust & Sav. Bank v. Provident Life & Accident Ins. Co., 57 F.3d 608, 617 (7th Cir. 1995).
A prevailing party is a litigant who "wins the battle" on a "substantial part of the litigation." Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999); First Commodities Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1015 (7th Cir. 1985).
Two tests have been applied in the Seventh Circuit to determine fee awards. The "substantial justification" test articulated inBittner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir. 1984), awards fees to the prevailing party "unless the loser's position, though unsuccessful, had substantial justification." Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 670 (7th Cir. 2007). Meanwhile, the "five-factor" test allows the Court to consider the following factors:
1) the degree of the offending parties' culpability or bad faith; 2) the degree of the ability of the offending parties to satisfy personally an award of attorneys' fees; 3) whether or not an award of attorneys' fees would deter other persons acting under similar circumstances; 4) the amount of benefit conferred on members of the pension plan as a whole; 5) the relative merits of the parties' positions.
Sullivan, 504 F.3d at 671; (citing Janowski v. International Brotherhood of Teamsters, 673 F.2d 931, 940 (7th Cir. 1982), vacated on other grounds.)
Regardless of which test a court employs, the question asked is essentially the same, "was the losing party's position substantially justified and taken in good faith, or was that party simply out to harass its opponent?"Stark v. PPM America, Inc., 354 F.3d 666, 673 (7th Cir. 2004); Bowerman v. Wal Mart Stores, Inc., 226 F.3d 574, 593 (7th Cir. 2000).
A reasonable fee can be calculated using the "lodestar" method, which is the "product of an attorney's reasonable hourly rate and the number of hours reasonably expended." Stark, 354 F.3d at 674; Hensley v. Eckerhart, 461 U.S. 424, 102 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Mathur v. Bd. of Tr. of S. Ill. Univ., 317 F.3d 738 (7th Cir. 2003). "Hours spent are not reasonably expended if they are excessive, redundant, or otherwise unnecessary."Stark, 354 F.3d at 674.
A reasonable hourly rate is "the rate that lawyers of similar ability and experience in the community normally charge their paying clients for the kind of work in question." Stark, 354 F.3d at 674. (citing People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307 (7th Cir. 1996)).
The moving party has the burden of proving a reasonable market rate and once such has occurred, the burden of proof shifts to the opposing party to show that a lower rate should be applied. Stark, 354 F.3d at 674-675; McNabola v. Chicago Transit Auth., 10 F.3d 501 (7th Cir. 1993).
Considering costs, the Court will apply 28 U.S.C. § 1920 which sets forth the categories of expenses which ...