DONALD C. NUGENT, District Judge.
This matter is before the Court on the Report and Recommendation of Magistrate Judge Nancy Vecchiarelli (ECF #127) on the Plaintiffs' motion for attorney's fees in the amount of $657,652.75 and expenses and costs in the amount of $7,792.93. (ECF #97) In her Report and Recommendation, Magistrate Judge Vecchiarelli proposes that the Plaintiffs' Motion for fees and costs be granted with the following deductions:
1) $100,183.00 for exploratory work performed between July 1, 2010 through September 2, 2010, prior to plaintiffs' signing the fee agreement;
2. $1,164.13 for costs incurred prior to September 2, 1010;
3. $10,463.75 to account for the reduced rate for work performed by Screen;
4. $164.00 for work done in Kilroy and improperly billed to the present case;
5. $1,120.00 due to the imprecision in block billing when attempting to account post hoc for time spent talking to the press;
6. $4,252.50 representing all attorneys' fees requested for Mills and Hill;
7. $24,306.94 to reflect an across-the-board reduction of 25% for discovery related to third parties;
8. $60,972.13 to reflect an across-the-board reduction of 25% for appellate work; and
9. $386.77 due to unnecessary costs incurred as a result of Ms. Gupta's travel to Cincinnati ($280.83) and the excessive cost of Mr. Chandra's hotel room in Cincinnati ($105.94).
In sum, Magistrate Judge Vecchiarelli recommends that Plaintiffs be awarded a total of $454,635.53 in fees and $6,442.03 in costs for this litigation. Both Plaintiffs and Defendant have filed objections to the Report and Recommendation and have both filed Responses to the others' objections.
Plaintiffs, who are Ohio physicians and Medicaid providers
While the exact origin of this action is hazy, based upon the affidavits and filings submitted to the Court, it appears that Dr. Lavin knew Attorney Chandra; that some discussions regarding § 3599.45 may have occurred in April, 2010, at least between counsel; and, that counsel began billing time in June 2010.
Section 1988 provides in relevant part that a court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, in any action brought to enforce a provision of § 1983. 42 U.S.C. § 1988(b). The purpose of § 1988 is to ensure "effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)(citations omitted.) Nevertheless, "Congress and the Supreme Court have made it abundantly clear that the aim of [§ 1988] `is not for the purpose of aiding lawyers. The purpose of th[e] bill is to aid civil rights.'" Binta B. v. Gordon, 710 F.3d 608, 612 (6th Cir. 2013). (citations omitted). As such, it is the goal of the court to assure that lawyers are fairly compensated for prevailing in civil rights actions, especially on behalf of plaintiffs who could not otherwise afford to pay an attorney to pursue their claim. That does not mean, however, that lawyers should expect a windfall; to bill excessive hours beyond what a paying client would permit; or, to be paid at a rate that exceeds the norm in their locality. That is particularly true in cases such as this one where the Defendant is a state or local government whose taxpayers will ultimately bear the burden of any fee award and the named Plaintiffs are medical doctors presumably abundantly capable of paying for representation. This is especially true where, as here, the Plaintiffs sought to make political monetary contributions to an elected official who was barred by statute from accepting contributions from any entity that the elected official had regulatory authority over.
In order to properly review and analyze a fee request under § 1988, this Court must review the fee filings and all facts related to the fee filing, as well as the legal rationale set forth in the fee sharing statute and the many cases interpreting the statute in order to determine first, whether a fee award is appropriate in the given circumstances and second, what amount is reasonable. The statute and corresponding case law interpreting this Court's responsibility, contemplates a fee application that is, at a minimum, accurate and trustworthy.
Moving first to the initial determination of whether this Court should exercise its discretion and award attorneys fees in this instance, the Defendant argues that the facts and circumstances of this case warrant a complete denial of fees. Specifically, Defendant asserts that this case constitutes one of the rare situations envisioned by the Supreme Court in Hensley v. Echart, 461 U.S. 424, 429 (1983), where "special circumstances would render an award [of attorneys' fees] unjust." Specifically, Defendant argues that Plaintiffs' conduct in billing $101,183.00 for work done prior to the signing of a written fee agreement contravenes the clear mandate of Rule 1.5(c)(1) of the Ohio Code of Professional Conduct.
While Defendant has highlighted the defects that the Magistrate Judge and this Court recognize in Plaintiffs' counsels' fee request, a complete denial of fees based upon a finding of special circumstances is a stringent sanction, "reserved for only the most severe situations." Project Vote v. Blackwell, Case No. 1:06 CV 1628, 2009 WL 917737 at *4, (N.D. Ohio Mar. 31, 2009). Further, in the Sixth Circuit, the non-prevailing party bears the burden of making a "strong showing" of special circumstances sufficient to warrant denial of fees and costs to a prevailing party. Deja Vu of Nashville, Inc. v. Metro Gov't of Nashville & Davidson Cty, 421 F.3d 417, 422 (6th Cir. 2005) (citation omitted). This is not a light burden. Indeed, the Sixth Circuit noted in McQueary v. Conway, 614 F.3d 591, 604 (6th Cir. 2010) that "we have never (to our knowledge) found a special circumstance justifying the denial of fees." In Project Vote, the Defendant argued that the prevailing plaintiffs' request for fees and costs should be denied in its entirety, because the fee application—both on its face and with respect to repeated specific instances of double billings, inflated hours, improper charges, and exorbitant and unsubstantiated proposed hourly rates—should shock the conscience of the Court. The Court found that a complete denial of the fee request was inappropriate because plaintiffs' counsel had obtained an excellent result in a short time frame and determined that a significant reduction in the fee request was sufficient in those circumstances. See also, Harkless v. Husted, Case No. 1:06 CV 2284, 2011 WL 2149179 at *12 (N.D. Ohio Mar. 31, 2011) (defendants' request that court completely deny fees was not frivolous in the circumstances as many of plaintiffs' counsels' billing practices and the sheer size of the request raised questions, however defendant did not meet burden of making a strong showing of "special circumstances" sufficient to justify denial of an award of any fees and costs.)
After very careful review, the Court narrowly agrees with Magistrate Judge Vecchiarelli in finding that the "special circumstances" identified by Defendant in this case do not justify a complete denial of fees and costs in this instance. Instead, any violation of Rule 1.5(c)(1) as well as the other deficiencies in the fee application have been adequately addressed by the significant reductions imposed by Magistrate Judge Vecchiarelli and then by this Court. The end result is a fee which this Court has determined is "reasonable" in these circumstances.
Moving on to the second part of the Court's determination, i.e., what is a reasonable fee, Magistrate Judge Vecchiarelli's Report sets forth the appropriate "lodestar" analysis and examines whether the hours sought by counsel, as well as the rates sought were reasonable. The Report further analyzes the twelve factors identified in Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717-19 (5
The primary goal for the Court is `reasonableness' under all the facts and circumstances fairly presented to the Court. "The primary concern in an attorney fee case is that the fee awarded be reasonable." Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)(citing Blum v. Stenson, 465 U.S. 886, 893 (1984)). Courts have also held that the hourly rate awarded should not be greater than required to encourage competent and experienced lawyers to undertake the representation, and should not produce a windfall to the attorneys. (Id.). This consideration is especially important when the Defendant subject to the fee-shifting award is a governmental entity. In such cases the cost of attorney's fees will be borne by the government, and therefore, in actuality by the taxpayer. Therefore, it is essential that the reasonableness determination limits the fees awarded, both in hours and rates, in a manner that ensures the prevailing attorneys are sufficiently compensated for the necessary and reasonable work they performed, without reaping a windfall from premium pricing, overstaffing, or overzealous representation.
In order to determine a rate that is consistent with the goals of the fee-shifting statute, while remaining mindful that the fees assessed will in the end be paid by all taxpayers, the Court relied on the Ohio Bar Association's report entitled "The Economics of Law Practice in Ohio: Desktop Reference for 2010" (hereinafter "Economics of Law"). This report was generated to "help in developing sound and equitable hiring and compensation policies" within Ohio. (Economics of Law, at 3). The Court finds that a rate based on the median fees charged by civil lawyers in the same geographic vicinity, adjusted for the size of the relevant law firm and the experience levels of the billing attorneys should satisfy the goal of providing reasonable fees that would be accepted by a sufficient number of competent, experienced lawyers in the field, thereby ensuring that civil rights litigants would have effective access to the judicial process.
The median hourly billing rate for all reporting civil attorneys was $200/hour, in 2009, with the median level of experience for reporting civil attorneys being eighteen years in practice. (Id. at 4). Two hundred dollars an hour was also the median billing rate for a partner in a firm with 2-7 partners. (Id. at 24). Associates in a 2-7 partner firm had a median billing rate of $175/hour. (Id. at 24). The median hourly rate for attorneys in suburban Cleveland was $200/hour, while the Greater Cleveland area had a slightly higher median at $210/hour. Although there was no separate category for billing rates of attorneys in the civil rights practice area, the report did compare the average salaries for attorneys in these categories to the average salaries of other practitioners. For attorneys whose primary field of law is civil rights practice, the median annual income for full-time attorneys was $79,500, or about 12% lower than the reported salary of all full-time attorneys. (Id. at 13). This differential remained the same among lawyers in the top 25th percentile of the salary range. However, civil rights lawyers who had an income in the top 5
The fees sought for the partners in this case exceed the rates charged by civil attorneys even in the 95
It also bears noting, that lawyers who accept court appointments in criminal cases, and are paid by the government to fulfill a constitutional duty to represent the accused, are currently being paid only $125.00 per hour regardless of their level of experience, skill or reputation, or the difficulty of the case. Even in death penalty cases, the most dedicated and experienced attorneys, taking on the most profound responsibility known in the law, are limited to a maximum hourly rate of $178.00. (See, Criminal Justice Act (CJA) as amended by the Judicial Administration and Technical Amendments Act of 2010, enacted May 27, 2010). In addition, each criminal case involving court appointed (and taxpayer funded) attorneys is subject to a case limit.
In this case, based on the level of difficulty of the case, and the skill needed to competently perform the legal service requested, and the billing rate ranges reported in the 2010 Economics of Law report,
These rates were calculated starting with the median rate charged by all reporting civil attorneys in Ohio, in all fields of expertise, with the same range of experience as measured by the years since their graduation from law school. (Id. at 23). This median rate for Ohio was then multiplied by 1.07 to represent the average premium paid in the Greater Cleveland area. (Id.). The Court did not discount the rate based on the average 12% lower median rate charged by civil rights lawyers. Paralegals were assessed a base rate of $81/hour based on the mid-range reported by the Economics in Law report, and they were also given the 1.07 multiplier for the Cleveland area.
The Court can neither determine whether the Chandra law firm would have represented the Plaintiffs in this case for this lower hourly fee, nor can the Court determine whether the Plaintiffs might have been willing and able to pay any additional premium out of their own pocket in order to ensure they had one of the highest priced law firms on the case. Based on the quantitative evidence available to the Court, however, there would undoubtedly have been a sufficient number of competent, experienced attorneys who would accept the rates set forth by the Court for a case of this nature.
Using the above listed hourly rates, if the Court were to accept that all hours billed in this case were reasonable and appropriate charges, the total fees would amount to $399,433.48.
In addition, the Court agrees that the fees related to discovery in this case are excessive and unreasonable. This case involved a facial attack to a statute that had been in place since the 1970s. A facial attack challenges the statute without regard to the underlying facts of any individual's case and without need for discovery as to how the statute was applied in any particular case. Further, much of the discovery that was billed in this case was related to the preparation, service, and defense of third-party subpoenas that were untimely under the discovery schedule set forth by the Court, and did not seek to provide any information necessary to the facial challenge of the statute at issue.
The Court also agrees that the time spent on the appeals briefing was excessive. However, a twenty-five percent reduction, as suggested by the Magistrate Judge, is not sufficient to address the scope of over-billing that occurred in this case. Because the issues on appeal were exactly the same as those repeatedly briefed and argued in connection with the multitude of filings submitted at the trial level,
The Court also finds that it is unreasonable to charge the Defendant for the following fee submissions:
Finally, Plaintiffs seek far more than allowed for fees related to the preparation and filing of their request for attorneys' fees. Absent special circumstances, which are not present in this case, the hours spent preparing and litigating the issue of attorneys' fees are limited to 3% of the total hours reasonably spent litigating the main case. Coulter v. Tennessee, 805 F.3d 146, 151 (6
Even had all of the submitted hours been reasonably billed, the hours attributable to the fee request would have been more than double the allowable amount. The Court has determined, under the particular circumstances of this case, at the very most, only approximately 740 hours are reasonably compensable for work on the main case. Therefore, the time spent preparing and filing the attorneys' fees request was nearly 92.3 hours more than is allowed under the 3% limit imposed by the Sixth Circuit. This means that the original request related to the preparation of a fee request was nearly eighty percent higher than is allowed under the law. The Court must, therefore, further reduce the amount of attorneys' fees awarded by an additional $17,972.66.
Taking all of the above deductions into account, the total billing amount under the lodestar calculation would be $198,321.14. However, this does not end the Court's inquiry into the reasonableness of the fees to be awarded. "Upon determining the lodestar, a district court also has discretion to decide whether an upward or downward adjustment is warranted in order to reach a reasonable fee award." Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed. Appx. 496, 499-500 (6
The Court may consider the following factors when determining whether an adjustment is appropriate:
Hensley v. Eckerhart, 461 U.S. 424, 430 n.3, 103 S.Ct. 1933, 76 L. Ed. 2d 40 (1983)(citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The evaluation of these factors is meant to ensure that the awarded fees "are adequate to attract competent counsel, but . . . not produce windfalls to attorneys" and will compensate the attorneys in the same manner that they would be compensated by a fee-paying client." Id. at 430 n.4.
The amount of reasonable time and labor required was addressed to some degree in the discussion explaining the appropriate number of hours allowed under the lodestar calculation. Blocks of time that were categorically overcharged have been addressed, but the Court has also found numerous instances in which the Plaintiffs' attorneys spent additional unwarranted time addressing filing errors, rule violations, requests for extensions of time, and briefing limits that are not appropriately billed to a government defendant in a fee-shifting case. (See, e.g., ECF #30, 36, 48, 50, 52, 61, 63, 64, 65, 68, 77, 90, 94, 118, 119, 129). In addition, this case did not require the amount of time and labor Plaintiffs poured into the discovery process in order to effectively address the legal question at hand. Indicative of the fact that the question raised was to be determined as a matter of law, without heavy reliance on factual evidence, neither Plaintiffs nor Defendant presented any testimony at the preliminary injunction hearing, nor did they seek admission of any evidence other than what had been attached as exhibits to the briefs, despite having engaged in over three months of preliminary research and discovery. (ECF #16).
Having spent days upon days combing through the billing entries to quantify the deductions required under the lodestar analysis, the Court did not find an additional entry-byentry review would be justified to find the precise amount of time spent addressing each additional or other unnecessary discovery and filings. Further, having reviewed the entries previously, the Court was aware that even if undertaken, such a review would not be effective in achieving this goal due in large part to the block billing methods and general descriptions used by the attorneys in recording their time. These numerous instances of excessive and unnecessary time spent, however, do weigh in favor of an additional downward adjustment based on the Johnson factors.
The difficulty of the case and the skill required to do it properly also weigh in favor of a downward adjustment. This case was a facial attack on a long-established statute which was enacted to prevent election fraud.
Preclusion of employment is also not a factor weighing in favor of Plaintiffs. This case should have involved, at the very most, only about 740 hours of work on the main case, stretched over more than two years. In a firm of four people, this equals less than eight hours a month of reasonably necessary work per person. In fact, even if every hour billed by the firm had been reasonable, it would have averaged out to only about 21 hours a month per person. Unlike a discovery laden case being prepped for lengthy trial, this is not the type of intensive work that should have precluded the attorneys from taking on other cases and addressing other matters. Further, by taking on the Kilroy case mid stream in this litigation, the Chandra firm should have been able to capitalize on the similarities of the two cases, thereby reducing the effort needed to advance the interests of each.
With regard to the type of fee agreement reached in this case, the Court finds that there is absolutely no evidence or indication that these Plaintiffs would have agreed to pay the rates or hourly charges submitted by these attorneys if this were not a fee-shifting case, even if they had the means to pay for representation. These Plaintiffs are not the typical civil rights Plaintiffs seeking redress for physical or monetary harm, who have no access to funds that could pay for representation. These Plaintiffs are physicians who were purportedly seeking to donate sums of money to forward a politician's election campaign. (ECF #2-1). Further, there is no actual evidence in the multitude of filings submitted in this case indicating that any of these Plaintiffs, other than Dr. Lavin, ever intended to donate money. (ECF #2-1).
Dr. Lavin began speaking with attorneys in April, 2010 (ECF #127 at 9); he knew Mr. Chandra through friends and through civic activism. (ECF #117-12). The attorneys began billing in June (Vasvari — ECF #97-9)) and July (The Chandra firm — ECF # 97-3). Dr. Lavin did not actually attempt to donate any money until after they had agreed that they would look into the case without any cost to him or the other Plaintiffs. (ECF #127). Further, Dr. Lavin specifically stated that he did not know if these attorneys would file a case on his behalf until he received the engagement letter at the end of August. (ECF #117-12). Rather, he understood that the attorneys would look into whether a Complaint even could be filed, without cost to him. (ECF #117-12).
The Plaintiffs contend that this case was accelerated and condensed due to time limitations created by the pending election. This Court finds, however, that the consideration of time limitations also weighs in favor of a downward adjustment to the attorney fees in this case. The Plaintiffs' attorneys filed this case on September 3, 2010 and a Motion for Preliminary Injunction was filed the next day. (ECF # 1,2 ). This was less than two months before the election related to the campaign at issue in the case.
The statute, at issue, however, was part of Amended Senate Bill 159, which was passed in 1978. (ECF #1, ¶19, 25). As stated above, Dr. Lavin began speaking with attorneys in April, and the attorneys started tracking time spent on the case in early June. The billing records show that a Complaint was being drafted at the beginning of July, 2010. Therefore, it appears that any time constraints imposed by the November 2010 election could have easily been alleviated by filing the case prior to September. It appears that Plaintiffs were aware of the problem no later than April of 2010, and had they been serious about their desire to overturn the statute and contribute to Mr. Cordray's campaign, they, along with their lawyers, should have filed something as soon as possible to ensure the issue could be resolved not only before the election, but while the donations could still have some positive effect on the campaign. Had this been done, the Defendants would have had a full opportunity to respond and the Court could have had time to rule on an expedited schedule without need for the filing for a preliminary injunction. This would have eliminated hours of unnecessary work and would have resulted in a more reasonable overall cost for this litigation.
The remaining Johnson factors also fail to provide any support for Plaintiffs' position that the fees requested in this case were reasonable and that any reduction would be unfair. There was no monetary award to be recovered in this case. Although the results obtained were good, in that the statute was found unconstitutional on appeal, many of the tangential arguments made, which were developed at an immense cost in terms of hours spent, were unsuccessful and unnecessary. Further, there is no evidence that this case was undesirable, or that other attorneys, who may have had lower billing rates and a more concise approach to this limited question of law, would not have been willing to take the case for a lesser fee. There is also no evidence as to the nature and length of the attorneys' relationship with these clients other than an indication that Dr. Lavin was an acquaintance, and a friend of a friend of Attorney Chandra. Further, there is no evidence that any of the attorneys had a direct relationship with any of the other Plaintiffs, even through the pendency of the this litigation.
Plaintiffs do cite to a multitude of cases in which courts have awarded higher hourly rates than this Court is willing to award in this case. While the Court does not hold that higher rates should never be awarded, under the circumstances of this case the fee request is excessive, unwarranted and overreaching. Many of the cases cited by Plaintiffs involved Defendants who either did not contest the fee request or who came to a negotiated award amount without the Court's intervention. Further, as government funding at all levels of government is leading to increased taxes and fiscal crises, it is imperative that this Court review fee requests that will ultimately be borne by the taxpayer with a renewed level of scrutiny. In doing so, the Court must find a balance between satisfying the goals of the fee-shifting provisions in the civil rights statutes, and overburdening the governmental defendant with fees and charges that produce an unnecessary and unwarranted windfall to the Plaintiffs' attorneys. By carefully examining the median fees of competent attorneys in the area; by prohibiting the charging of extreme premium rates in a fee-shifting case; and by ensuring that all hours billed actually provided added value to the representation; this goal can be achieved without affecting the availability of willing and competent counsel in such cases.
Other factors have also been noted and considered in the decision to impose a downward adjustment to the fees awarded in this case. The Court has noted in its review of the billing records, that the Chandra law firm's invoice improperly added $5 to $20 per entry through improper calculations to many if not all of the entries ending in a fifteen minute increment. It appears that these entries were rounded up to .3 hours, rather than being calculated as .25 hours. This resulted in overbilling in at least the hundreds of dollars range, and likely reaching into the thousands. While the Court did not check each and every entry to see if this occurred throughout the entire 121 pages of time entries, it appeared in each instance throughout a random sampling of over twenty entries taken from various pages in the billing invoice. Other calculating errors, which also favored the attorneys, were found as well, although not as consistently.
In addition, as set forth in the Magistrate Judge's Report and Recommendation, the original fee request contained numerous other errors and questionable billing practices that inured to the benefit of the Plaintiffs' attorneys. These included but are not limited to: recording of time spent in a different litigation; recording time under the wrong dates; the use of imprecise block billing; billing for unnecessary travel expenses; excessive and largely unnecessary or irrelevant lines of discovery; billing attorney rates for purely clerical work; billing for corrections caused by filing errors and failure to follow court rules; and, billing for time spent speaking to the press. These collective errors and misjudgments resulted in numerous instances of over billing, and cast doubt on the accuracy and reliability of the Chandra firm's billing records in general. Such practices also lend support to the Court's decision to impose a downward adjustment of the fee award in this case.
Finally, the Court has also factored into the post-lodestar analysis the fact that the Defendant in this case is a governmental entity, and the award will ultimately be borne by the taxpayers of the state (including the Plaintiffs themselves). When exercising its discretion to award fees that will be charged to a governmental entity, the Court is and must be the guardian of the public fisc. This role, of course, cannot overshadow the Court's responsibility to be a fair and impartial arbiter of the questions presented, but it does require the Court to give some consideration to the taxpayers who become in essence an unwitting, affected party to the action. To be faithful to these obligations, the Court exhaustively and painstakingly reviewed every aspect of this fee application to arrive at an award that is not only fair to all parties, but also reasonable in light of the unique facts and circumstances of this case.
The fee request originally submitted was "grossly exaggerated and absurd" considering the type and quality of work that would have been sufficient to provide justice to the litigants in this case. Under such circumstances courts have held that courts have the authority to deny fees in their entirety. See, M.G. v. Eastern Regional High School Dist., 2009 U.S. Dist. LEXIS 98631 at *10 (D. N.J.)(quoting Hall v. Borough of Roselle, 747 F.2d 8385, 842 (3d Cir. 1984)). An argument can be made that such a sanction would be supportable under the facts of this case, based on all of the considerations set forth above. Nonetheless, the Court finds that under the unique circumstances of this case a downward adjustment to the lodestar calculation would be a an adequate consequence. Neither the EAJA nor the Sixth Circuit case law mandates that Courts slave over a detailed analysis of each entry in every case, "particularly where analysis of other factors makes clear that the total award is not `reasonable.'" Crim v. Commissioner of Soc. Sec., 2013 U.S. Dist. LEXIS 35373, *10 (S.D. Ohio 2013). Rather courts routinely apply significant across the board percentage reductions where an adjustment is deemed warranted. Id.
Considering the outrageous nature of the original request; the plethora of billing errors and inconsistencies; the relatively straightforward nature of the issue being litigated; the moderate level of difficulty involved; the repetitive nature of the various filings; the excessive amount of editing and re-drafting undertaken; the numerous re-filings caused by inattention to court rules or orders; and, other excessive and inefficient practices outlined in the Report and Recommendation, the Court has made a reduction of 35 percent to the lodestar calculation of $198,321.14.
For the reasons set forth above, the Report and Recommendation of Magistrate Judge Vecchiarelli (ECF #127) is Adopted in Part and Not Adopted in Part. Plaintiffs' Motion for Attorneys' Fees (ECF #97) is granted in the total amount of $128,908.74. The Court further adopts the reasoning of Magistrate Judge Vecchiarelli with regard to the recommended cuts to the costs requested by Plaintiffs' attorneys with one exception. Plaintiffs' request for the cost of serving a third party subpoena on Kroger Co., in the amount of $127.03, will be denied as it was served after the discovery cutoff date. Subtracting $127.03 from $6,442.03 results in a final cost award of $6,315.00. These costs are reasonable and supported by the evidence. Plaintiffs' Bill of Costs is terminated as moot. (ECF #99)
IT IS SO ORDERED.
