United States District Court, D. Minnesota
Jonathan A. Strauss, Lorenz F. Fett, Jr., and Sonia L.
Miller-Van Oort, SAPIENTIA LAW GROUP PLLC, for plaintiff.
Iverson, Susan M. Tindal, and Stephanie A. Angolkar, IVERSON
REUVERS CONDON, for defendants City of Waite Park, Jonathan
Collins, and Gene Hill.
MEMORANDUM OPINION AND ORDER ON REPORT AND
R. TUNHEIM Chief Judge United States District Court
February 2014, Plaintiff Misty Kay Myers filed an action
primarily alleging multiple defendants - including Defendant
City of Waite Park - violated the Driver's Privacy
Protection Act (“DPPA”) by permitting illegal
accesses of her driver's license information. (Compl.
¶¶ 24, 106-09, Feb. 20, 2014, Docket No. 1.)
Subsequently, in October 2015, Myers amended her complaint to
add Defendants Johnathan Collins, a Waite Park's Police
Department employee, and Gene Hill, an Isanti County
employee, for impermissibly accessing Myers's
information. (Am. Compl. ¶¶ 43, 46, 126-27, 152-53,
Oct. 9, 2015, Docket No. 68.)
2016, Myers entered into an agreement releasing her DPPA
claims against several entities and agents - including
Defendants City of Waite Park, Collins, and Hill
(collectively “Defendants”) - for $4, 500. (Aff.
of Stephanie A. Angolkar, Ex. 2 (“General
Release”) at 1-2, Aug. 29, 2016, Docket No. 165.) The
General Release provides that Myers could petition the Court
for “reasonable attorney's fees and costs”
from the discharged parties. (Id. at 1.) Pursuant to
that provision, Myers promptly petitioned for $32, 835.50 in
attorney's fees and $3, 774.89 in costs for prosecuting
her claims against Waite Park and Collins. (See
Pl.'s Mem. in Supp. at 7-8, Aug. 15, 2016, Docket No.
145.) Defendants jointly opposed Myers' motion and argued
Myers's recoverable amount should be reduced for a
multitude of reasons.
November 30, 2016, U.S. Magistrate Judge Leo I. Brisbois
issued a Report and Recommendation (“R&R”)
recommending that the Court grant in part and deny in part
Myers's motion. Specifically, the Magistrate Judge
recommended awarding Myers $1, 097.25 in costs and $15,
912.44 in attorney's fees, for a total award
of $17, 009.69. (R&R at 43, Nov. 30, 2016, Docket No.
187.) Myers timely objected to two portions of the entire
R&R - (1) the denial of $2, 677.64 in expert costs, and
(2) the denial of multiple attorneys' time billed by for
intra-firm conferences. (Pl.'s Objs. to R&R at 5,
Dec. 14, 2016, Docket No. 188.)
Court will adopt in part and reject in part the Magistrate
Judge's R&R. Due to the absence of language
authorizing recovery for expert costs in 18 U.S.C. §
2724(b)(3), the Court will overrule Myers's expert costs
objection and adopt the Magistrate Judge's R&R.
However, because of the discretion afforded to the Court in
determining the reasonableness of hours billed and the nature
of the claims at issue, the Court will sustain Myers's
objection for time billed for intra-firm conferences and will
reject this portion of the Magistrate Judge's R&R. In
all other respects, the Court will adopt the R&R.
STANDARD OF REVIEW
the filing of a report and recommendation by a magistrate
judge, a party may “file specific written objections to
the proposed findings and recommendations.”
Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR
72.2(b)(1). “The objections should specify the portions
of the magistrate judge's report and recommendation to
which objections are made and provide a basis for those
objections.” Mayer v. Walvatne, No. 07-1958,
2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008).
dispositive motions, the Court reviews de novo any
portion of an R&R “that has been properly objected
to.” Fed.R.Civ.P. 72(b)(3); accord D. Minn. LR
72.2(b)(3). Because a motion for attorney fees is a
dispositive motion, the Court will review portions of the
R&R that Myers objected to de novo.
Magistrate Judge noted that there was no case within the
Eighth Circuit addressing the recoverability of expert costs
in a DPPA case, and he concluded that Myers's request for
$2, 677.64 in expert costs were not recoverable because the
DPPA - unlike other statutes - does not explicitly authorize
the recovery of expenses associated with compensating
experts. (R&R at 38, 41-42.) Myers objects, arguing that
expert costs are recoverable under 18 U.S.C. §§
2724(b)(3) and (b)(4). Section 2724(b)(3) provides that in a
DPPA case, the Court may award “reasonable
attorneys' fees and other litigation costs reasonably
incurred.” Myers asserts § 2724(b)(4), which
provides that the Court may award “equitable relief as
the court determines to be appropriate, ” implicitly
authorizes the Court to award expert costs as “other
litigation costs reasonably incurred” under §
Court declines to construe § 2724(b)(3) as implicitly
authorizing recovery of expert costs, where other
fee-shifting statutes explicitly authorize the recovery of
expert fees. See, e.g., 33 U.S.C. § 1365(d)
(“The court . . . may award costs of litigation
(including reasonable attorney and expert witness fees) . . .
.”); 54 U.S.C.A. § 307105 (“[T]he court may
award attorney's fees, expert witness fees, and other
costs of participating in the civil action, as the court
considers reasonable.”); Menghi v. Hart, 745
F.Supp.2d 89, 115 (E.D.N.Y. 2010) (declining to award expert
costs under § 2724(b)(3) because “[p]laintiff
ha[d] not provided any legal authority to address the
principle that if Congress intended to allow recovery of
expert witness fees, it should have explicitly provided for
that recovery in the statute”). Furthermore,
Myers's position regarding § 2724(b)(4) is
unpersuasive as “equitable relief” does not
generally involve actions for money damages, see Mertens
v. Hewitt Assocs., 508 U.S. 248, ...