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Pentel v. Shepard

United States District Court, D. Minnesota

December 20, 2019



          Nancy E. Brasel United States District Judge

         Michelle Povolny and Kim Povolny (the “Settling Plaintiffs”) seek $60, 258.50 in attorneys' fees and $264.76 in costs under 18 U.S.C. § 2724. [ECF No. 66 (the “Motion”); see also ECF No. 96 (“Pls' Obj.”) at 1-2.] In a Report and Recommendation [ECF No. 95 (“R&R”)], United States Magistrate Judge Tony N. Leung recommended that the Motion be granted in part and denied in part. The Settling Plaintiffs filed an objection to the R&R. (Pls' Obj.) The City of Mendota Heights and Michael Shepard (the “Defendants”) filed a joint response to that objection. [ECF No. 97.] For the reasons set forth below, the Court overrules the Settling Plaintiffs' objections and accepts the R&R as modified.


         Together with Randolph Pentel and Michael Povolny (the “Non-Settling Plaintiffs”), the Settling Plaintiffs brought this putative class action against the Defendants for alleged violations of the Driver's Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., and the Minnesota Government Data Practices Act (“MGDPA”), Minn. Stat. § 13.01 et seq. The Settling Plaintiffs claimed that Shepard, a police officer, wrongfully accessed their driver's license information. [See generally ECF No. 1.] On March 15, 2019, the Defendants served offers of judgment on the Settling Plaintiffs under Rule 68 of the Federal Rules of Civil Procedure. [See ECF Nos. 46, 47, 50 and 51.] The Settling Plaintiffs accepted those offers on April 1, 2019. [See ECF Nos. 31, 32, 52 and 53.] According to the terms of the offers, each Defendant agreed to pay each Settling Plaintiff $2, 550. [ECF Nos. 46, 47, 50, 51.] The Defendants also agreed that the Settling Plaintiffs could petition the Court for an award of reasonable costs and attorneys' fees. (Id.)

         After the Settling Plaintiffs' acceptance of the Rule 68 offers in April 2019, the Non- Settling Plaintiffs have continued to litigate their own claims and those of the remaining members of the putative class. The Court has yet to issue a final judgment on the Non- Settling Plaintiffs' claims or those they assert on behalf of the putative class.

         On June 12, 2019, the Settling Plaintiffs filed their Motion, then seeking $60, 475 in attorneys' fees and $264.76 in costs. [See ECF No. 67 at 2.] The Defendants jointly opposed the request. [See ECF No. 81.] The R&R agrees that the fees sought are unreasonable and recommends that they be reduced. (See R&R at 10.) Although the Settling Plaintiffs agree that the requested $60, 475 inadvertently included $216.50 for time spent on the Non- Settling Plaintiffs' claims, they object to the R&R on various other grounds, maintaining that they are entitled to the remaining $60, 258.50. (See Pls' Obj. at 1-2.)


         I. Standard of Review

         Parties may “file specific written objections to [a magistrate judge's] proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); accord D. Minn. L.R. 72.1(b). “The objections should specify the portions of the magistrate judgeʹs report and recommendation to which objections are made and provide a basis for those objections.” Mayer v. Walvatne, 07-CV-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008).

         For dispositive motions, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). Because a motion for attorneys' fees is a dispositive motion, this Court reviews de novo the portions of the R&R to which the Settling Plaintiffs object. See Myers. v. Aitkin Cty., 14-CV-473 (JRT/LIB), 2017 WL 1134575, at *2 (Mar. 27, 2017).

         II. Analysis

         Under the DPPA, courts “may award ‘reasonable attorneys' fees and other litigation costs reasonably incurred.'” Orduno v. Pietrzak, 932 F.3d 710, 719 (8th Cir. 2019) (“Orduno II”) (quoting 18 U.S.C. § 2724(b)(3)). “The party seeking fees bears the burden of establishing entitlement to an award and documenting the appropriate hours and hourly rates.” Id. at 719-20. “The starting point for determining attorneys' fees is the ‘lodestar,' which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate.” Id. at 719.

         The Settling Plaintiffs assert that they are entitled to $60, 258.50 in view of the 154.6 hours expended and the hourly rates charged by the timekeepers working on this case. The R&R recommends that: (1) the Court exclude 34.225 hours relating to class issues; (2) the Court reduce by 40 percent the time each timekeeper spent on preparing the complaint, preparing the Rule 26(f) report, drafting discovery requests, drafting discovery responses, and time spent on clerical tasks; (3) the Court adjust the hourly rates charged by each timekeeper to correspond to the hourly rates charged in other DPPA cases brought in this district; (4) the Court reduce the resulting figure by another 20 percent to reflect the Settling Plaintiffs' partial success in this matter. (R&R at 10.) The Settling Plaintiffs object to each of these adjustments.[1] For the reasons stated below, the Court overrules each of the Settling Plaintiffs' objections to these adjustments.

         A. Excluding 34.255 Hours Relating to Class Issues

         “[T]he fee award must be justified by the plaintiff's level of success.” Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir. 2001). Indeed, “the degree of success obtained” is “the most critical factor” courts consider when awarding attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 436 ...

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