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holding that pro hac vice fees are not taxable as costs
Summary of this case from Strawser v. StrangeOpinion
Civil Action No. 00-A-1468-S.
March 3, 2003
MEMORANDUM OPINION AND ORDER
I. FACTS AND PROCEDURAL HISTORY
This cause is before the court on the Plaintiff's Motion for Attorneys' Fees (Doc. #170).
This action was brought by the Plaintiff for various violations of the Fair Credit Reporting Act ("FCRA") and for state law claims. The case was originally filed by the Plaintiff pro se in September of 2000. In February of 2001, Susan Thompson, Plaintiff's sister, began acting as co-counsel with the Plaintiff until she withdrew as trial counsel. In November 2001, Winn Faulk entered an appearance on behalf of the Plaintiff and in January 2002, David Szwak also filed an appearance, but then withdrew from the case before trial.
In May of 2002 the case was tried to a jury. of the nine claims asserted, only one claim was sent to the jury, along with a punitive damages claim. The jury returned a verdict in favor of the Plaintiff on his FCRA negligence claim and awarded him only compensatory damages, in the amount of $80,000, which were remitted to $30,000. The Defendants had previously made a Federal Rule of Civil Procedure 68 Offer of Judgment to Plaintiff in the amount of $25,000 and attorneys's fees. The Defendant states that at the time of the offer of judgment, which was to trial, the Plaintiff's attorneys's fees were $29,345.00. The Plaintiff now seeks a total of $155,991.11 in attorneys's fees and $3,390.58 in expenses and costs.
II. DISCUSSION
In deciding what fees appropriately should be awarded, the court must articulate the decisions it makes, give principled reasons for those decisions, and show its calculations. Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988).
The award of attorneys' fees on the basis of a negligent FCRA violation is covered in § 1681o of the FCRA which states as follows:
(a) Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of —
(1) any actual damages sustained by the consumer as a result of the failure;
(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys' fees as determined by the court.15 U.S.C. § 1681o.
The Eleventh Circuit has examined the propriety of an attorneys' fees award in a recent reported decision. See Nagle v. Experian Info. Solutions, Inc., 297 F.3d 1305, 1307 (11th Cir. 2002). In that case, the Eleventh Circuit compared other fee statutes to the FCRA and concluded that the words "prevailing party," used in civil rights fee statutes, like the word "successful," used in the FCRA, connote the granting of some sort of requested relief. Id.
As the Eleventh Circuit relied on attorneys's fees statutes other than the FCRA in deciding Nagle, this court will be guided in its analysis of the fees petition by the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). These factors include (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of professional relationship with the client; and (12) awards in similar cases. Id.
The court now turns to the reasonable hours to be compensated in this case, the hourly rate to be applied to those hours, and the reasonable expenses incurred in this case.
A. Reasonable Hours
The Defendant has raised specific objections to hours claimed by the three attorneys who represented the Plaintiff at various times in this case. The court will, therefore, address those objections within the context of the hours claimed by each attorney.
Susan Thompson
The Defendant contends that none of the hours claimed by Thompson which were expended before she filed an appearance in this case are compensable. The Defendant identifies 19 hours of time as having been expended before Thompson's appearance in the case, at a time when the Plaintiff was proceeding pro se. The Defendant also states that the Plaintiff presented to the jury an amount of $4,000 as being the fees paid to his sister as his attorney and argues that to allow him to recover that amount as an attorneys' fee would be duplicative. Those charges, however, which the court finds to have been included in the jury's award of compensatory damages, were for services rendered in attempting to resolve this matter without suit. They are not included in this claim.
As to hours expended before Thompson entered an appearance for the Plaintiff, there is precedent for awarding fees for work expended even before an attorney is formally representing a client. See Dowdell v. City of Apopka, 698 F.2d 1181, 1188 (11th Cir. 1983). Those hours expended in this case, however, were for preparing a complaint to be filed by the Plaintiff pro se and for other services "behind the scenes," while the Plaintiff was appearing to the court and to the Defendant to be representing himself. Rule 11, Fed.R.Civ.P., provides for the signing of a pleading by a party only when "the party is not represented by an attorney." The court finds it inappropriate for an attorney to prepare a complaint and other papers for a party to sign and file pro se and then later ask to be paid for services in representing the pro se party. If an attorney is representing a party in a court action he or she should do so openly and show an appearance on court documents. The court will disallow these hours.
In determining the amount of attorneys' fees to be awarded, a court may reduce the amount awarded based on the degree of success obtained by the plaintiff. The Eleventh Circuit has stated, in the context of a civil rights case, that if claims on which the plaintiff did not prevail and claims on which he did prevail were distinctly different and based on different facts and legal theories, then no fee can be awarded on the claims on which he did not prevail. Popham v. City of Kennesaw, 820 F.2d 1570 (11th Cir. 1987). If unsuccessful and successful claims involve a common core of facts, however, the court has to compare the overall relief with the number of hours reasonably expended in the litigation. Id. at 1578. If the plaintiff had excellent results, the attorney should be fully compensated. Id. If the plaintiff had partial or limited success, the court can reduce the amount if the court finds it to be excessive. Id. at 1578-79. The Eleventh Circuit indicated that this kind of analysis is appropriate in evaluating a claim under the FCRA, by stating, "Indeed, the Supreme Court in Buckhannon Board Care Home, Inc. v. West Virginia Department of Health Human Resources, recognized that to be a "prevailing party" means to have prevailed on the merits; ordinarily `a plaintiff [must] receive at least some relief on the merits of his claim before he can be said to prevail.'" Nagle, 297 F.3d at 1307.
The Defendant has identified various motions, such as motions to quash, upon which the Plaintiff did not prevail, and have argued that time expended on these matters is not compensable. The court certainly agrees with the proposition that it should make an adjustment to the loadstar figure based on the Plaintiff's relative success. In this case, since the Plaintiff ultimately only prevailed on one claim, and only received compensatory damages and was unsuccessful on the punitive damages claim, such an adjustment is appropriate. The court does not, however, agree that time should be excluded for each individual motion on which the Plaintiff was not successful, but finds that both the lack of success on many matters and excessive time spent on them are properly to be considered in the overall evaluation of a reasonable fee in this case. It is clear to the court that Thompson spent a considerable amount of unnecessary time in pursuing matters without merit before associating trial counsel.
Thompson has stated in her affidavit that she has already excluded from her claimed time all time expended on claims which were unsuccessful. The Defendant states in a footnote that it has never been presented with any time records which include time for unsuccessful claims against which to compare the submission which has been made to the court. Entries such as the entry on July 13, 2001, which claims 2 hours for downloading CLE materials, and reviewing FCRA cases outline and 3 hours for reviewing FCRA cases and issues such as willfulness indicates to the court, however, that there is time claimed attributable to claims upon which the Plaintiff was not successful.
Although the Defendant has asked the court to take into account that Thompson is not an experienced litigator, the court will not deduct time spent on tasks which an experienced litigator might not have expended. The court will follow the lead of another district court in this circuit and will reduce the hourly rate awarded by the court and eliminate time spent on the Plaintiff's unsuccessful claims, to account for wasted effort and deduct time for unnecessary or unreasonable efforts. George v. GTE Directories Corp., 114 F. Supp.2d 1281, 1294 (M.D.Fla. 2000).
The Defendant seeks to exclude 2.8 hours of Thompson's time as duplicative. Although "[t]here is nothing inherently unreasonable about a client having multiple attorneys," Barnes, 168 F.3d at 432 (quotingNorman, 836 F.2d at 1302), courts should exclude hours performed by two attorneys that are unnecessary and redundant. See Duckworth, 97 F.3d at 1397-98 (reducing the hours of each attorney where both attorneys attended all depositions). To recover for tasks performed by more than one attorney, the burden is on the fee applicant to show that the time spent by each attorney "reflects the distinct contribution of each lawyer to the case and [is] the customary practice of multiple lawyer litigation." Barnes, 168 F.3d at 432 (citations omitted).
The hours identified by the Defendant are an hour spent reviewing testimony with Winn Faulk in preparation for Defendant's motion for judgment as a matter of law, a half hour charge conference with the court, and an hour and a half spent assisting Winn Faulk at trial. An order entered earlier in the case makes it clear that Thompson, while still representing the Plaintiff, was not representing the Plaintiff as trial counsel. See Doc. # 134. The court must agree with the Defendant that as Thompson had withdrawn from representing the Plaintiff as trial counsel and Plaintiff was represented by Faulk, who served as sole trial counsel, Thompson has not demonstrated that these hours were not duplicative, and the court concludes that these hours are not to be compensated. The court will, therefore, deduct 2.8 hours from Thompson's claimed time.
The Defendant also seeks to exclude 8.1 hours of Thompson's time as having been spent on ministerial or clerical tasks. The Defendant also argues that Thompson spent an unreasonable amount of time doing research and travel and overstated entries such as a thirty minute phone call and a one-hour revision to a basic document. As it is difficult to determine the claims for which such time was expended, the court will consider this in an overall adjustment.
Finally, the Defendant seeks to exclude 10 hours of Thompson's time as being too vaguely documented to be compensated. The hours identified by the Defendant are 8 hours for trial preparation and 2 hours for reviewing and revising arguments and authorities opposing the Defendant's motion for judgment as a matter of law. With respect to the hours for "trial preparation" the court agrees that these are vaguely documented and, in light of the fact that Thompson had withdrawn as trial counsel, are not to be compensated. While the court might not necessarily agree that the 2 hours are vaguely documented, the court will also deduct the 2 hours spent in opposing judgment as a matter of law since Thompson was no longer serving as trial counsel.
Thompson has claimed 357.60 hours. For the reasons stated above, the court deducts 31.8 hours, leaving 325.80. The court will adjust these hours for overall lack of success of her time spent by deducting 60%, or 195.48, leaving 130.32 hours for which she will be compensated.
Winn Faulk
The Defendant has also raised objections to the hours claimed by Faulk on similar grounds. As stated above, the court agrees that an overall adjustment is due to be made based on the relatively limited success the Plaintiff achieved at trial. The Defendant has raised specific objections to 16.2 hours expended by Faulk on what the Defendant calls "unsuccessful claims." The court will consider this in its adjustment.
The Defendant objects to 1.8 hours claimed by Faulk as being ministerial. As this entry indicates that it was a post-trial conference with the client and a reorganization of trial materials for the return trip home, the court does not find that this did not require Faulk's personal time to the extent that these hours should be excluded.
The Defendant objects to 4 hours of Faulk's time as being excessive or unnecessary. The hours identified were expended in preparation for the fee petition. As the court cannot conclude that these hours are unreasonable given that Faulk was required to carefully document his time and submit it to the court, particularly given that one of the Defendant's objections to the fee petition is that it is not sufficiently detailed, the court will not exclude these hours.
Finally, the Defendant objects to 23 hours of time claimed by Faulk as being vague or inadequately documented. All of the hours pointed to by the Defendant are listed as "trial preparation" and were expended during the course of the trial. While the court agreed that Thompson's documentation of hours as "trial preparation" was vague, that was in large part because she was no longer representing the Plaintiff as a trial advocate in the case, and so it was unclear what role she would have played in trial preparation. Faulk, on the other hand, was the sole trial counsel for a case which lasted several days. Therefore, the court concludes that these hours claimed are not unreasonably vague. As trial preparation would have necessarily included claims upon which the Plaintiff was not successful, however, the court will consider this in making an overall reduction.
The court agrees that an adjustment must be made based on the relatively limited success the Plaintiff achieved at trial, but does not find Faulk's efforts to have been spent on matters without merit to the extent of Thompson's. It is difficult to determine with precision just what time was spent on unsuccessful claims, because of the overlapping nature of some issues. Clearly, however, much time would have been saved if the Plaintiff had not pursued the unsuccessful claims. The court will apply what it determines to be a reasonable overall adjustment of 50% to the 271.90 hours claimed by Faulk, leaving 135.95 compensable hours.
David Szwak
Szwak was originally designated as lead trial counsel, but withdrew from the case before it went to trial. The Defendant states in a footnote that because Szwak's withdrawal from the case was filed under seal with the court, the Defendant is unable to fully assess the reasonableness of his fee petition. The Defendant asks the court to either lift the seal, or strike the fee request in its entirety. The court finds that lifting the seal is not appropriate and that the substance of the motion to withdraw which was filed under seal does not bear on the reasonableness of Szwak's claimed hours. Accordingly, the court will not strike his fee petition on that basis.
The court recognizes, however, that Szwak only represented the Plaintiff in this case for a limited period of time and that his time appears to have been spent primarily in an effort to settle the case. Szwak has claimed 110.85 hours. The Defendant does not contend that none of his hours are compensable, but has identified specific entries which it characterizes as duplicative, unsuccessful, clerical, or excessive.
There is at least some authority for the proposition that the hours counsel spends on mediation which is unsuccessful should not be compensated. Alfonso v. Aufiero, 66 F. Supp.2d 183, 193 (D.Mass. 1999) (court deducted the hours that plaintiffs' counsel unsuccessfully spent on mediation). Not all of the hours expended by Szwak were expended in preparation for mediation, however. It appears from his claimed time entries that at least some of his hours were attributable to trial preparation, although he was an attorney appearing in the case only for a brief period of time. As with the hours claimed by Thompson and Faulk, however, these hours include both time expended on claims upon which the Plaintiff had success, and the claims upon which the Plaintiff was unsuccessful. Therefore, since Szwak's hours include hours spent on unsuccessful mediation and unsuccessful claims, the court will reduce his claimed hours overall by 75%, based on the Plaintiff's success. Szwak will, therefore, be compensated for 27.71 hours.
Paralegals
The Plaintiff has also claimed hours for paralegal work. A prevailing party must be compensated for work done by law clerks or paralegals only to the extent that such work is traditionally done by an attorney. See Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. Unit B 1982). The Plaintiff has claimed 39.60 hours of paralegal time. The Defendant does not appear to have voiced objections to particular paralegal hours, other than .4 hours of what the Defendant characterizes as vaguely documented time. The Defendant does, however, argue that the overall hours claimed by the Plaintiff are due to be reduced based on the level of success which he had on his claims. The court agrees and concludes that a 50% reduction will also be applied to the paralegal hours, resulting in 19.8 hours.
B. Hourly Rates
The Plaintiffs have requested that a $200 hourly rate be applied to the hours claimed by Susan Thompson and Winn Faulk and a rate of $225 to the hours claimed by Szwak. The Defendant does not contest the hourly rate claimed by Faulk or Szwak, except when applied to hours expended traveling. The Defendant suggests that the hourly rate of Susan Thompson be reduced to $75.
Rates are customarily set by the court based on the relevant Johnson factors, particularly the following factors: (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (5) the customary fee in the community; and (9) the experience, reputation, and ability of the attorneys. Generally, the relevant legal community "is that of the place where the case is filed."Cullens, 29 F.3d at 1494.
Thompson states in her affidavit that this was her first FCRA case. Given her level of experience, therefore, the court finds that the rate she has claimed exceeds a reasonable rate and that her hours should be compensated at a rate commensurate with a relatively new, rather than experienced lawyer. The court concludes, therefore, that a $100 rate is to be applied to the hours claimed by Thompson. As to the hours claimed by Winn Faulk and David Szwak, because the Defendant does not contest their hourly rate, the court concludes that for purposes of this fee petition only, it will apply the $200 hourly rate requested to the hours claimed by Faulk and the $225 hourly rate requested to the hours claimed by Szwak.
Although the Eleventh Circuit has not expressly addressed the issue, a court in this circuit has concluded that reasonable travel time is compensable at a regular hourly rate. See, e.g., Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492, 1497 (M.D.Ala. 1996) (awarding compensation for travel time at usual hourly rate). Accordingly, the court will award compensation at a regular hourly rate for travel time, particularly in view of the fact that the court has accounted for the reasonableness of the amount claimed by substantially reducing the number of hours claimed based on the overall success of the Plaintiff's claims.
Finally, the Defendant does not appear to have objected to the rate claimed for paralegal work of $50 an hour. Therefore, the court will apply this hourly rate to the paralegal hours.
C. Expenses
The Defendant contests the expenses claimed on two primary grounds: they have already been compensated in the bill of costs, and some of the expenses are not recoverable. Thompson has claimed $1,594.39 in expenses. Included are 8 charges for FedEx, totaling $143.64. The court finds that this choice, rather than use of the mails, is not an expense which should be shifted to the Defendant, and that will be denied. Also, a courier charge of $100, with no explanation of necessity, will be denied. Thompson includes charges for court fees of $220 and for depositions of $231. These are allowed as court costs by separate order, and will be denied here. The same as to a charge of $749.64 for enlargements of trial exhibits, which are covered in court costs. This leaves $150.11, which the court will reduce by 60% based on overall success of her efforts. Therefore, the court will approve expenses for Thompson in the amount of $60.04.
Faulk has claimed expenses of $1,785.47. Defendant has objected to charges for copying, mileage, postage, and Westlaw computer research. The court, however, finds these to be recoverable expenses, although not taxed as costs. The claim of $576.24 for subpoena fees has been addressed in taxation of costs and will be deducted here. Also, the charge of $24.46 for FedEx and the $40 charge for pro hac vice admission fees will be disallowed. This leaves $1,144.77, which will be reduced by 50% for overall success. The court will approve expenses of $572.38 for Faulk.
As to Szwak's expenses for attending the mediation, for which he has claimed $1,010.72, for the reasons discussed above, the court will disallow an Airborne Express charge of $44.72 and will reduce by 75% the balance of Szwak's claimed expenses based on the overall level of the Plaintiff's success, leaving $241.50 which the court will approve for expenses.
III. CONCLUSION
For the reasons discussed, compensation for attorneys' fees and expenses is due as follows:
Total Attorneys' fees Total Expenses Total $48,320.67
Attorneys Reasonable Hours x Reasonable Rate = Total Fees Expenses Winn Faulk 135.95 200 27,190.00 572.38 Susan Thompson 130.32 100 13,032.00 60.04 David Szwak 27.71 225 6,234.75 241.50 Paralegals 19.8 50 990.00 47,446.75 873.92 Accordingly, it is hereby ORDERED that the Petition for Attorneys' Fees is GRANTED to the following extent: the Plaintiff shall recover of the Defendant the sum of $47,446.75 in attorneys' fees and $873.92 in expenses, for a total of $48,320.67 for all of which execution may issue.1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute: Appeals from Final Orders Pursuant to 28 U.S.C. § 1291: Only final judgments for orders of district courts (or final orders bankruptcy courts which have been affirmed by a district court under 25 U.S.C. § 158) usually are appealable. A "final" order one which ends the litigation on its merits and leaves nothing for the district court to do but execute the judgment. A magistrate report and recommendation is not usually final until judgment thereon is entered by a district court judge. Compare Fed.R.App.P. 5.1, 28 U.S.C. § 636(c).
In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision. Fed.R.Civ.P. 54(b) does permit the district court to expressly direct entry of the judgment as fewer than all of the claims or parties.See Pitney Bowes, Inc. v. Mestre. 701 F.2d 1365, 1369 (11th Cir. 1983),cert. denied 464 U.S. 893(1983). Certain matters, such as attorneys fees and costs are collateral and do not affect the time for appealing from the judgment on the merits. Buchanan v. Stanships, Inc., 495 U.S. 265, 108 S.Ct. 1130, 99 L.Ed 2d 289 (1988); Budinich v. Becton, 485 U.S. 196, 108 S.Ct. 1717, 100 L.Ed 2d 178 (1988)
Appeals Pursuant to 28 U.S.C. § 1292(b) and FRAP 5 : The certificate specified in 28 U.S.C. § 1292(b) must be obtained before an application for leave to appeal is filed in the Court of Appeals. Denial or refusal by the district court to issue the certificate not itself appealable.
Appeals Pursuant to 28 U.S.C. § 1292(a) : Pursuant to this statute, appeals are permitted from orders "granting, continuing modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and "(i)nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases . . ." This statute does not permit appeals from temporary restraining orders.
Appeals pursuant to Judicially Created Exceptions to the Finality Rule: These limited exceptions are discussed in many cases, including (but not limited to): Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed 2d 1528 (1949), Forgay v. Conrad, 6 How. (47 U.S.) 201 (1848); Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed 2d 199 (1964); Atlantic Federal Savings Loan Assn. Of Ft. Lauderdale v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371 (11th Cir. 1989). Compare Coopers and Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed 2d 351 (1978); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed 2d 296 (1988).
Time for Filing: To be effective a notice of appeal must be timely filed. Timely filing is jurisdictional. In civil cases FRAP 4(a) and 4(c) set the following time limits:
FRAP 4(a)(1): The notice of appeal required by FRAP 3 "must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry . . ." (Emphasis added) To be effective, the notice of appeal generally must be filed in the district court cleric's office within the time permitted. If a notice of appeal is mailed, it must be timely received and filed by the district court to be effective. FRAP 4(c) establishes special filing provisions for notices of appeal filed by an inmate confined in an institution, as discussed below.
FRAP 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when thefirst notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires." (Emphasis added)
FRAP 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in FRAP 4(a)(4), the time for appeal for all parties runs from the entry of the order disposing of the last such timely filed motion outstanding.
FRAP 4(a)(5) and FRAP 4(a)(6) : The district court has power to extend the time to file a notice of appeal. Under FRAP 4(a)(5) the time may be extended if a motion for extension if filed within 30 days after expiration of the time otherwise permitted to file a notice of appeal. Under FRAP 4(a)(6) the time may be extended if the district court finds upon motion that a party has not received notice of entry of the judgment or order and that no party would be prejudiced by an extension.
FRAP 4(c): "If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system or. or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that first-class postage has been prepaid.
Format of Notice of Appeal: Form 1, FRAP Appendix of Forms, is a suitable format. See also FRAP 3(c). A single notice of appeal may be filed from a (single) judgment or order by two or more persons whose "interests are such as to make joinder practicable . . ." (FRAP 3(b))
Effect of Notice of Appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction (see Fed.R.Civ.P. 60) or to rule on a timely motion of the type specified in FRAP 4(a)(4).
ORDER
Upon consideration of the Motion to Supplement Attorneys' Fee Request (Doc. #178), and for good cause shown, it is hereby ORDERED that the Motion is GRANTED.