Henderson v. Horace Mann Insurance (560 F. Supp. 2d 1099, 2008)

OPINION AND ORDER

CLAIRE V. EAGAN, District Judge.

On February 26, 2008, United States Magistrate Judge Paul J. Cleary entered a Report and Recommendation (Dkt. # 204) on plaintiffs’ attorney fee request of $137,770.50. The magistrate judge recommended that plaintiffs, as the prevailing parties, receive a fee award of $36,650.00. The parties filed timely objections (Dkt. ## 205, 206). Pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b), plaintiffs filed a timely response (Dkt. #207) to defendant’s objection. Defendant then filed a motion to strike plaintiffs’ response (Dkt. #208). For the reasons set forth below, the Court finds that defendant’s motion to strike (Dkt. #208) should be denied, the objections to the Report and Recommendation (Dkt. ## 205, 206) should be overruled, and the Report and Recommendation (Dkt. #204) should be accepted.

I. Relevant Background

The Court begins with a brief recitation of the relevant facts. The instant civil action arises from an insurance claim made by plaintiffs Stuart and Regina Henderson (collectively “the Hendersons”) to their automobile insurer, defendant Horace Mann Insurance Company (“HMIC”). In June 2000, plaintiffs’ vehicle was involved in a collision. Dkt. #204, at 3. Plaintiffs demanded the full policy amount — or $25,-000 — under their insurance contract with HMIC. Dkt. #161, at 2. When HMIC refused to pay this amount, plaintiffs filed suit for breach of contract and bad faith. Dkt. # 61, at 3.

On January 12, 2005, the Court granted summary judgment in HMIC’s favor on the bad faith claim. Id. at 9. With only the breach of contract claim remaining, HMIC made an offer of judgment pursuant to Fed.R.CivJP. 68. Dkt. # 204, at 4. Plaintiffs accepted HMIC’s offer. Id. On November 2, 2005, the Court entered judgment in favor of plaintiffs for $25,001.00, minus $7,324.23 previously paid by HMIC to plaintiffs. Dkt. # 161, at 3. Plaintiffs then appealed the Court’s ruling on their bad faith claim to the United States Court of Appeals for Tenth Circuit. Id.

Shortly thereafter, the Court granted plaintiffs’ motion for attorneys’ fees upon acceptance of an earlier report and recommendation. See id. at 10. The Court did not award attorneys’ fees at that time, however. The Court found that “[t]he amount of attorneys’ fees will be determined subsequent to the Tenth Circuit Court of Appeals’ disposition of the bad faith claim.” Id. at 6. On June 25, 2007, plaintiffs voluntarily dismissed their appeal. See Dkt. # 169. Accordingly, the amount of attorney fees recoverable by plaintiffs under Oiíla. Stat. tit. 36, § 3629(B) became ripe for review by the magistrate judge.

In the Report and Recommendation, the magistrate judge set forth the applicable law and described his careful examination of the submitted time records. The magistrate judge calculated the “lodestar” by multiplying the reasonable market hourly rates by a reasonable number of hours devoted to compensable matters. See Dkt. #204, at 10-23. The magistrate judge made appropriate adjustments to the hourly rates and excluded from the fee calculation: (a) time spent on matters unrelated to this case, (b) time related solely to the unsuccessful bad faith claim, (c) time improperly recorded, (d) time spent on clerical tasks, “reviewing” documents, and two interoffice conferences, and (e) time billed for duplicative work. See id. at 14-22. The magistrate judge then applied twelve factors, also known as the Burk factors, to adjust the fee calculation. See id. at 23-28. He concluded that the adjusted fee award was reasonably related to the amount at issue. See id. at 29-30. In sum, the magistrate judge recommended that plaintiffs’ fee request be substantially reduced for five reasons: (i) plaintiffs requested hourly rates were higher than the prevailing community rates for the type of work involved; (ii) plaintiffs failed to meet their burden of justifying the significant number of hours expended on this non-complex case; (iii) plaintiffs prevailed on their breach of contract claim but did not prevail on their bad faith claim; (iv) plaintiffs submitted records revealing “numerous errors in billing judgment, including attorneys spending time on tasks that paralegals could handle, time spent on unproductive activity, duplication of effort, and billing for time that would normally not be charged to one’s client[;]” and (v) plaintiffs submitted records with numerous time-keeping problems, “including block billing and vague entries that render impossible an adequate review of the records and determination of the reasonableness of the time spent.” Id. at 2. Both HMIC and plaintiffs object to the Report and Recommendation.

II. HMIC’s Motion to Strike

The Court finds that HMIC’s motion to strike (Dkt.# 208) should be denied. HMIC argues that the “non-dispositive matter of attorney fees ... is governed by Fed.R.Civ.P. 72(a)[,]” which does not allow the filing of responses. Dkt. # 208, at 1. Contrary to HMIC’s assertion, however, Rule 72(a) does not govern the Court’s referral of the motion for attorneys’ fees. A final ruling on attorneys fees is disposi-tive, and that is precisely why the magistrate judge proceeded by Report and Recommendation under Rule 72(b). Further, Fed.R.Civ.P. 54(d)(2)(D) very clearly states that a district court “may refer a motion for attorney’s fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.”

Nevertheless, HMIC argues that a district court must “designate” a motion for attorneys’ fees as “a dispositive motion under Rule 72(b)” for Rule 54(d)(2)(D) to apply. HMIC cites no authority to support its conclusory assertion. The Court finds that the plain language of Rule 54(d)(2)(D) does not require a district court to designate a motion as “disposi-tive.” The Court can find no controlling authority, moreover, that interprets Rule 54(d)(2)(D) as mandating an express designation. The Court concludes that defendant’s motion is without merit. Plaintiffs’ response complies with Rule 72(b), which permits a party to “respond to another party’s objections within 10 days after being served a copy.”

III. Standard of Review

The Court must conduct a de novo review of the magistrate judge’s Report and Recommendation. See Fed. R. Civ. P 72(b) (“[T]he district judge to whom the case is assigned shall make a de novo review determination upon the record, or after additional evidence.”). Under 28 U.S.C. § 686(b)(1), the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” De novo review requires the Court to “consider the actual testimony or other evidence in the record and not merely [to] review the magistrate’s report and recommendations.” Northington v. Mann, 102 F.3d 1564, 1570 (10th Cir.1996). The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

IY. HMIC’s Objections

HMIC objects on two grounds. First, HMIC argues that the proposed fee award “requires defense counsel to be unwilling participants in the unethical behavior of Plaintiffs’ counsel.” Dkt. #205, at 1. According to HMIC, this Court may not award attorneys’ fees because plaintiffs’ underlying attorney fee contracts violate the Oklahoma Rules of Professional Conduct. Second, HMIC argues that the magistrate judge wrongfully concluded that plaintiffs are entitled to a fee award under Okla. Stat. tit. 36, § 3629(B). The Court need only briefly consider these objections.

A. Purported Ethical Violations

HMIC argues that a fee award is prohibited under the Oklahoma Rules of Professional Conduct because: (i) plaintiffs have not expended any monies for attorney fees and thus are not entitled to recover any fees; (n) the attorney fee contracts violate Rule 1.5 because they do not specify, by amount or percentage, a contingency fee to be paid from the judgment; (in) the attorney fee contracts violate Rule 5.4 because they provide for the sharing of fees between plaintiffs’ counsel and their non-lawyer clients; and (iv) the prevailing parties executed the attorney fee contracts after acceptance of the offer of judgment in an effort to inflate recovery in this case. Dkt. # 205, at 1-3. According to HMIC, the Court “has an ethical obligation not to award fees that will be illegally split between lawyer and client.” Id. at 4. HMIC does not cite any case law in support of its arguments.

The Court need not determine whether plaintiffs’ fee agreements are enforceable or valid before calculating a reasonable fee award. A fee agreement is a matter between the client and the attorney. Morgan v. Galilean Health Enterprises, Inc., 977 P.2d 357, 363 (Okla.1998). The agreement “is not binding on the court in awarding an appropriate attorney’s fee.” Id. Moreover, any amount due under the agreement may not serve as a basis for calculating the prevailing party’s fee award. Id. Because plaintiffs’ fee agreements do not form the basis of the proposed fee award, HMIC is not harmed by the agreements and, hence, lacks standing to challenge their terms. Dkt. # 204, at 27; see Morgan, 977 P.2d at 364 n. 25 (“Because we hold today that the contingent-fee contract between a client and her attorney does not form the basis for an award of an attorney’s fee against a third party, [defendant’s argument is moot. [Defendant] is not harmed by the existence of the contract and hence lacks standing to challenge its terms.”). Further, the Court is not “enforcing” plaintiffs’ fee agreements by ordering a fee award. The extent to which plaintiffs share the award with their counsel has nothing to do with the amount of attorneys’ fees plaintiffs are due under Okla. Stat. tit. 36, § 3629(B). See Morgan, 977 P.2d at 364 n. 25 (rejecting argument that the court could not award attorneys’ fees because of the underlying fee agreement’s purported violation of an Oklahoma statute). Therefore, HMIC’s objection is without merit.

B. Plaintiffs’ Entitlement to a Fee Award under Okla Stat. tit. 36, § 3629(B)

HMIC asserts numerous arguments as to why plaintiffs are not entitled to attorneys’ fees under Orla. Stat. tit. 36, § 3629(B). Yet HMIC ignores the fact that the Court has already determined that plaintiffs are entitled to attorneys’ fees. See Dkt. # 161, at 6 (“[T]he Court finds that plaintiffs are entitled to reasonable attorneys’ fees.”). HMIC cannot seek to reargue this issue now, nearly two years after the Court granted plaintiffs’ motion for attorneys’ fees. See Wessel v. City of Albuquerque, 463 F.3d 1138, 1143 (10th Cir.2006) (“Generally, ‘once a court decides an issue, the same issue may not be reliti-gated in subsequent proceedings in the same case.’ ” (quoting Grigsby v. Barn-hart, 294 F.3d 1215, 1218 (10th Cir.2002))). HMIC has presented no reason why the Court should revisit this issue. Thus, the Court concludes that HMIC’s objections should be overruled.

V. Plaintiffs’ Objections

Plaintiffs object on three grounds. First, plaintiffs argue that the magistrate judge should have awarded fees incurred in determining the reasonableness and good faith of HMIC’s breach of contract, as permitted by the Tenth Circuit’s unpublished decision in Quail Creek Petroleum Management Corp. v. XL Specialty Insur ance Co., 129 Fed.Appx. 466 (10th Cir. April 28, 2005). Dkt. # 206, at 3. Second, plaintiffs argue that the magistrate judge improperly “based his report and recommendation in part on the amount of attorneys’ fees owed by the Hendersons under their contingency fee agreement with their attorneys.” Id. Plaintiffs aver that Oklahoma precedent makes clear that a statutory fee award “may not be based on the amount due under the attorneys’ fee contract.” Id. at 4. Third, plaintiffs argue that the magistrate judge’s fee calculation is “grossly inadequate.” Id. According to plaintiffs, “this case required an enormous amount of attorney time and labor” because of “the way [HMIC] chose to defend this lawsuit[,]” and HMIC should not be rewarded for its conduct. Id. The Court considers each of these arguments in turn.

A. Exclusion of Time Expenditures Related Solely to Bad Faith

In Quail Creek, 129 Fed.Appx. at 470, the Tenth Circuit rejected the district court’s arbitrary 33% reduction of plaintiffs fee award for time expended on an unsuccessful bad faith claim. The Tenth Circuit found that plaintiff, as the prevailing party, “was statutorily entitled to attorney fees for all of the time reasonably spent on the breach-of-contract claim.” Id. (emphasis in original). As opposed to speculating about the percentage of time that was spent on the bad faith claim, the district court should have examined the time sheets and noted which fees were unrelated to the contract claim. Id. at 471. The Tenth Circuit concluded that under Oklahoma law, a district court may exclude a time expenditure only if the “expenditure was necessary solely to establish” the bad faith claim. Id.

Here, the magistrate judge found Quail Creek unpersuasive because the decision “presumes that an attorney’s time records will reflect whether the time recorded was spent purely on a bad faith claim.” Dkt. # 204, at 15. The magistrate judge opined that “this is rarely the case.” Id. The magistrate judge also found that Quail Creek has two unintended consequences. First, Quail Creek “effectively shift[s] the claimant’s burden to justify the time for which he or she seeks payment and effectively create[s] a burden on the court to justify any reductions in the fees claimed.” Id. at 15. Second, Quail Creek “give[s] attorneys incentive to pad their time records and to describe their activities as generally as possible....” Id. at 16.

The Court cannot ignore a subsequent unpublished decision reiterating Quail Creek’s “ivory-tower” analysis. In Sims v. Great American Life Insurance Co., 207 Fed.Appx. 908, 910 (10th Cir.2006), the Tenth Circuit held that “the district court need ’ disallow only those attorney’s fees related specifically to the issue of whether [the insurer] acted in bad faith in failing to pay [the] claim.... ” Id. Although Sims recognized that a plaintiff cannot recover fees related solely to an unsuccessful bad faith claim, it noted that “bad faith and contract claims overlap to an extent.” Id.; Quail Creek, 129 Fed.Appx. at 471 ( CO t> ^ rH tH CO fc ^OO C/3 GO-ce-

TOTAL $137,598.00

(1) Time that HMIC contends is unrelated to this lawsuit.

HMIC contends that much of the time claimed by Plaintiffs’ attorneys should not be compensable because it is unrelated either to this case or to the claim on which Plaintiffs prevailed. Williams seeks compensation for 15.65 hours recorded between Feb. 5, 2002, and May 22, 2003. The Complaint in this lawsuit was not drafted until June 2003. Time spent prior to that date dealt with matters related to other aspects of the Hendersons’ problems — e.g., storage fees for the Hendersons’ car, the Tulsa Teachers’ Credit Union’s lien on the Hendersons’ vehicle or negotiations with the tortfea-sor’s insurance company. This time is unrelated to this lawsuit and is properly excluded from the fees requested.

(2) Time spent solely on the bad faith claim.

Plaintiffs contend that all time spent solely on bad faith has been eliminated from the submitted time records. Defendant disagrees and asks the Court to exclude time spent on issues that relate only to the bad faith issue. Resolution of this issue has occupied significant time because it has required the Court to go beyond the time entries to determine the focus of the work.

Plaintiffs cite Quail Creek Petroleum Management Corp. v. XL Specialty Ins. Co., 129 Fed.Appx. 466 (10th Cir.2005) (unpublished), for the proposition that where a party prevails on a breach of insurance contract claim but not its conjoined twin— bad faith — 'that the trial court may not “arbitrarily reduce the attorneys’ fee award in an attempt to apportion fees between the successful and unsuccessful claims.” (Motion for Attorney Fees, Dkt. # 110, p. 4). Based on Quail Creek, Plaintiffs argue that only very limited reductions should be made in the time claimed. However, it is critical to recognize that because Quail Creek is an unpublished opinion it is not binding precedent. 10th Cir. R. 32.1. It may, however, be cited for persuasive value. Id. For reasons set forth below, I do not consider Quail Creek to be persuasive in determining fees in a case such as this. Thus, I have employed the standard attorney fee procedure outlined above.

In Quail Creek, the Tenth Circuit examined a case similar to the one before me. In that case plaintiff prevailed on a breach of insurance contract claim but failed on a bad faith claim. Because the district court could not ascertain from the time records submitted how much time was expended on the bad faith claim, it reduced the fees by 33 percent “to account for plaintiffs failure to prevail on all issues.” Quail Creek, 129 Fed.Appx. at 470. The appellate court rejected this approach. Noting that “a bad-faith action is inextricably intertwined with a breach-of-contract claim,” the court stated that the district court should have “examined the time sheets to determine if the amounts requested were reasonably related to the contract claim and should have specifically noted which expenditures were unrelated to that claim.” Id.

I find Quail Creek unpersuasive because it presumes that an attorney’s time records will reflect whether the time recorded was spent purely on a bad faith claim or on an issue that could apply equally to both a contract and a bad faith claim. Unfortunately. this is rarely the case. Furthermore, Quail Creek would have two unintended consequences: First, it would effectively shift the claimant’s burden to justify the time for which he or she seeks payment and effectively create a burden on the court to justify any reductions in the fees claimed. This would unduly protract and complicate attorney fee disputes and produce the sort of satellite litigation that courts have warned against. E.g., Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (“A request for attorney’s fees should not result in a second major litigation.”). Second, Quail Creek would give attorneys incentive to pad their time records and to describe their activities as generally as possible in order to avoid the sort of analysis suggested in that opinion.

Plaintiffs submit that all time related to bad faith has been cut from their time records; however, I find that is not the case. There are many instances in the Plaintiffs time records where the focus is solely the bad faith claim. One example is this July 21, 2005, time entry:

7/21/2005 JBW Telephone Call 5.0 hours [reduced to 2.5 hours]

T/c with Robert Stout requesting conference to finalize affidavit. Multiple t/cs with Mr. Stout to coordinate meeting to discuss possible affidavit; agreement to meet Mr. Stout at McDonald’s at 15th and Lewis; redraft of draft outline of affidavit for Mr. Stout; travel to interview Mr. Stout to determine what he knows and remembers; corrections and changes to affidavit; Mr. Stout agreed to meet later in the day when his affidavit could be corrected and changed as he required; Return travel to office; multiple calls with Mr. Stout to coordinate meeting him for final approval of affidavit; agreement to meet at Notary Public’s office in North Tulsa; travel to North Tulsa Notary Public’s office to meet Mt. Stout to review changes to affidavit, obtain notarized signature; return travel to office.

July 21, 2005, time entry of JBW.

Two problems — vagueness and block-billing — plague this entry. The subject matter of the Stout information is not apparent; thus, it is impossible from the face of the entry to determine whether it relates to breach of contract or bad faith. However, a review of the submitted time records establishes that the focus of White’s (JBW) work was the Motion to Reconsider the Court’s bad faith ruling. Indeed, White first appears in the time records on May 16, 2005, responding to a phone call from Williams requesting that White undertake research regarding a possible Motion to Reconsider. (Plaintiffs’ time Records, p. 19). White worked on such a motion in May and July of 2005. Five days after the July 21 time entry described above, Plaintiffs filed their initial Motion to Reconsider. [Dkt. # 79]. The Motion to Reconsider was directed solely at reconsideration of Plaintiffs’ bad faith claim. Attached as Exhibit “10” to the Motion to Reconsider was a two-page Affidavit signed by Robert Stout. Thus, it seems clear that White’s time for July 21, 2005, is directed to the issue of bad faith and should be excluded. There are similar problems relating to affidavits of Steve Kimbrel (Ex. “23” to Dkt. # 79) and Vince Goins (Ex. 9 to Dkt. # 79).

Another example of the difficulty in separating compensable and non-compensable time is represented by this time entry: 5/24/2005 JBW Worked on 5 hours [reduced to 2.5]

Continuation of study of law, attempts to articulate arguments in a substantive brief under outline; continue efforts to draft brief in support, and to determine evidence to be developed for use in support of brief and trial in both bad faith and breach of contract claims.

This entry is vague because it does not specify what legal issue is being studied. Thus, is excludable on that basis alone. In addition, however, after referring to the surrounding time entries, it is clear that the “continuing study” and the “outline” mentioned also relate to the Motion to Reconsider the Court’s bad faith ruling. Thus, the time is properly excludable on this basis as well. Finally, because the recorded time is block-billed, it is impossible to determine how much of the attorney’s time was spent on the bad faith issue and how much was related to the contract claim. This is also ground for exclusion.

A final example of the time spent on bad faith is found in Plaintiffs’ discovery time. I have reviewed the discovery requests drafted by Plaintiffs’ counsel as well as the depositions of Michele Fennewald and Twanna Amos of HMIC. I conclude from my review of those materials that the majority of this discovery dealt with issues related primarily, if not solely, to Plaintiffs’ bad faith claim. I also find that the time logged to discovery in this case was excessive and duplicative and, therefore, a significant reduction is warranted. This is especially true where two attorneys billing $250 per hour traveled to St. Louis to take two depositions, with each attorney billing II hours. I have reviewed these depositions in full. The deposition of Amos focused little on Plaintiffs’ contract claim.

(3) Block-billing.

It is the fee applicant’s burden to submit records that enable the Court to make an informed determination concerning the reasonableness of the hours claimed and the nature of the services provided. Burk, 598 P.2d at 668; Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir.1988). When time is recorded in vague descriptions or is block-billed, the court is not provided the “detailed time records showing the work performed” that is required under Oklahoma law. Burk, 598 P.2d at 663. Block-billing prevents the Court from determining how much time was spent on each specific task, and, thus, whether the time claimed is reasonable.

I have found no Oklahoma cases specifically addressing the block-billing issue, and the Tenth Circuit has not adopted a per se rule requiring reduction of fees in the event of block-billing. Cadena v. Pacesetter, 224 F.3d 1203, 1215 (10th Cir.2000) (“[T]his court has not established a rule mandating reduction or denial of a fee request if the prevailing party submits attorney-records which reflect block-billing.”) However, courts may discount fees if time records are not properly kept and do not permit the requisite evaluation See Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998). That is the case here.

Courts confronted with block-billing have reduced the attorney fees claimed by a fixed percentage or disallowed them entirely. ONG, 355 F.Supp.2d at 1265 (15 percent reduction to compensate for block-billing and other problems); Jane L., 61 F.3d at 1510 (35 percent reduction for “sloppy and imprecise” time records); In re Automobile Warranty Corp., 138 B.R. 72, 77 (Bankr.D.Colo.1991) (10 percent reduction applied to total fee request). See also In re Reconversion Technologies, 216 B.R. at 58 (discussing cases, but declining to do a percentage reduction).

The burden is on the fee claimant to provide proper time records for review. Burk, 598 P.2d at 663. Under these circumstances, a reduction in time is warranted to account for block-billing, and lack of detail in time entries that render the requisite analysis impossible. Because of this, Plaintiffs’ counsel have failed to meet their burden to justify the time for which they seek compensation.

(4) Time spent on Plaintiffs’ claim against the collision wrongdoer.

HMIC has identified two time entries— 4/11/2002 and 4/16/2002 — for time spent dealing with the claim against the tortfea-sor and the tortfeasor’s insurance company. This time has already been excluded pursuant to section B(l) above.

(5) Time spent on collection efforts.

HMIC contends that time counsel spent dealing with lawsuits. or claims against the Plaintiffs for non-payment of debts should be excluded. I agree. Most of the time entries identified by HMIC have already been excluded under section B(l). Plaintiffs are no longer seeking compensation for the .4-hour recorded on 10/13/2004. Counsel seeks payment for 2.0 hours recorded on 1/20/2005. The time entry reads:

Meeting with Stuart Henderson, telephone calls to David Scott and Regina Henderson concerning garnishment, release and satisfaction of judgment. Discuss status of breach of contract claim.

Time Records, p. 18.

Because of block-billing I am unable to determine how much time was spent on the Hendersons’ garnishment and related matters, and how much was spent discussing the breach of contract claim. All time for this date will be excluded since counsel has failed to meet her burden under Burk to provide time records establishing how much time was spent on each task.

The time ,3-hour recorded on 9/14/2005 regarding a foreclosure action against the Hendersons should be excluded.

(6) Time spent on clerical tasks.

Much of this time has already been excluded by Plaintiffs; however, I have identified approximately $1,500.00 worth of additional attorney time that should be excluded on this basis.

(7) Time spent “reviewing” documents.

Counsel spent small increments of time reviewing such documents as an entry of appearance or a minute order. Such time is excludable. Time spent on such minor matters would not normally be billed to one’s own client, and time that is not properly billed to one’s client is not properly billed to one’s adversary.

(8) Time spent in interoffice conferences.

Some reduction is in order for interoffice conferences. For example, on Jan. 18, 2007, Ikenberry, Andrew and Williams conferred with one another to prepare for an upcoming mediation session with the Tenth Circuit. Ikenberry did not charge for his time, but both Andrew and Williams did. On July 22, 2007, Ikenber-ry, Williams and Andrew conferred regarding the impact of my previous Report and Recommendation in this case. Each lawyer billed for the conference time. Time spent by lawyers conferring with co-counsel should be excluded or certainly not billed at $250 per hour.

(9) Duplicative work.

There are several instances of duplica-tive work. Two lawyers billed 22 hours ($5,500) to take two depositions in St. Louis, MO. is one example. One of these depositions (Amos) has little relevance to the contract claim Plaintiffs prevailed on. One experienced attorney could easily have taken both depositions.

On Feb. 23, 2006, Ikenberry, Williams and Andrew all billed for reviewing the same Report and Recommendation. Multiple lawyers attended the same hearings on several occasion (e.g., Jan. 25, 2006). In addition, multiple lawyers worked on the same tasks, and the time records do not provide sufficient detail for the Court to determine the degree of overlap.

I have also found several instances of excessive billing. As just one example, Williams logged seven (7) hours in one day drafting Plaintiffs’ First Interrogatories and Requests for Admission and Production. These discovery requests included nine Interrogatories, seven Requests for Production, and seven Requests for Admission. None of the discovery requests is complicated, complex or unusual. It is inconceivable that drafting such requests would require seven hours from an attorney as experienced as Williams. The time is clearly excessive and will be reduced significantly.

At the Jan. 9 hearing, Defendant also objected to three specific categories of attorney time: (a) Time spent solely on the bad faith claim.; (b) All time incurred after the date of Judgment; (c) Time spent in mediation at the Tenth Circuit Court of Appeals. I have determined that time spent only on the bad faith claim should be excluded. Time spent after the date of Judgment has been evaluated on the basis of whether it was reasonably incurred in relation to the breach of contract claim on which Plaintiffs prevailed. Time spent on mediation before the Tenth Circuit has been excluded. The case was before the appellate court only because Plaintiffs appealed the District Court’s bad faith ruling. Plaintiffs did not prevail on that appeal or on the underlying bad faith claim. The Tenth Circuit mediation effort did not resolve the case and did nothing to affect the Judgment entered by the District Court on Nov. 2, 2005.

C. Revised Lodestar Calculation

I have carefully reviewed the time records submitted. I have considered the factors outlined in Da/rrow, 581 P.2d at 1314:(1) what services were performed; (2) what services were necessary; (3) the value of the necessary services; and, (4) what a reasonable fee for those services would be. After eliminating time on the basis described above, I find the following necessary and productive work was performed:

• Williams: initial investigation, drafting Complaint, discovery (70 hours).

• Andrew: discovery, research on attorney fee recovery (45 hours).

• Ikenberry: briefing: response to Motion for Summary Judgment, attorney fee request, response to Motion to Vacate Judgment, brief in support of Motion to Alter and Amend Judgment. (61 hours)

• White: Motion to Reconsider summary judgment ruling on bad faith (20 hours).

Applying the hourly rates as determined above the lodestar calculation is as follows:

Attorney In-Court Out of Court Total Williams 10 ($2,500) 60 ($ 9,000) $11,500 Andrew 18 ($4,500) 27 ($ 6,750) $11,250 Ikenberry 3 ($ 750) 58 ($10,150) $10,900 White 0 20 ($ 3,000) $ 3,000 TOTAL $36,650

D. Application of the Burk Factors.

After arriving at the lodestar amount, the Court must apply the various factors set forth in Burk to adjust the fee either upward or downward.

(1) Time and Labor Required.

I have adjusted for this consideration in determining the reasonable number of hours for purposes of the lodestar calculation. As I have discussed above, time spent on a case is only one of the factors a court must consider in determining a reasonable fee. Oliver’s Sports Center, 615 P.2d at 294; Hamilton v. Telex Corp., 625 P.2d 106, 110 (Okla.1981). Adjustments have been necessary due to vague time entries and block-billing. In addition many of the hours claimed should be excluded given the nature of the tasks performed. A reduction is also necessary since Plaintiffs achieved only partial success on their claims and recovered at most one-third of the amount sought.

(2) Novelty and Difficulty of the Questions Presented.

Complex cases may justify a higher fee and a simple case a lower fee. Rossi, § 5:4 at 5-18. With the exception of the effect of the revised Badillo decision (“Ba-dillo II ”) which was rendered during the pendency of this case, the case presented no novel questions of law. The Badillo II decision was rendered on June 21, 2005, five months after the District Court had issued its ruling on HMIC’s Motion for Summary Judgment and dismissed the Hendersons’ bad faith claim. This development justified a Motion to Reconsider the Court’s summary judgment ruling on bad faith, but did not require the large expenditure of time made by White in seeking to reopen the summary judgment determination. Other than this, the case was a simple breach of contract matter.

(3) Skill Required to Perform the Legal Services.

The case