SOUZA v. CHARMED LLC (2024)

ORDER ON MOTION FOR ATTORNEY FEES AND EXPENSES

I. INTRODUCTION

This case is before me on a motion (Doc. 58) for attorney fees and expenses filed by plaintiffs Alana Souza, Dessie Mitcheson, Emily Sears, Jamillette Gaxiola, Jessica Hinton, Katarina Van Derham, Lina Posada, Megan Daniels, Melanie Iglesias, Rosa Acosta, Rosie Roff, Sandra Valencia, Tiffany Toth Gray and Ursula Mayes (Plaintiffs).¹ They move under Federal Rule of Civil Procedure 54(d) and Local Rule 54A for a total award of $174,118.72. Doc. 58 at 1-2. Defendant Charmed, LLC, doing business as Flirts Gentlemen's Club (Flirts), filed a resistance (Doc. 62) and Plaintiffs filed a reply (Doc. 63). Oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND

The 16 individual Plaintiffs in this matter proceeded to trial against Flirts on March 11, 2024. Docs. 48, 50. Their claims are summarized in my memorandum opinion and order denying their motion for partial summary judgment. Doc. 30 at 1-2, 4-5. At trial, each of the Plaintiffs asserted seven claims for relief against Flirts: false association under the Lanham Act (Claim #1); false advertising under the Lanham Act (Claim #2); violation of the common law right of publicity (Claim #3); violation of the common law right of privacy through appropriation (Claim #4); violation of the common law right of privacy through false light (Claim #5); negligence (Claim #6); and unjust enrichment (Claim #7). See Doc. 47-1 at 14-23. Following a three-day jury trial, the jury returned a verdict in favor of each Plaintiff as set forth below:

Docs. 53, 54, 55.

Collectively, the jury awarded damages in the amount of $134,000.² See Doc. 58 at 1. In accordance with my order (Doc. 56) extending the deadline for post-trial motions, Plaintiffs filed the present motion for attorney fees and a bill of costs on May 15, 2024. Docs. 57, 58. On June 3, 2024, the Clerk entered taxable costs in the amount of $6,591.94.³ Doc. 61.

Plaintiffs seek a total of $174,118.72 for a combination of attorney fees and non-taxable expenses. Doc. 58. This includes $113,650 in attorney fees and $60,468.72 in expenses. Id. at 2. The requested fees represent 227.3 hours of work at an hourly rate of $500. Doc. 58 at 2. Flirts resists Plaintiffs’ motion, arguing they are not entitled to an award of attorney fees or non-taxable expenses. Doc. 62 at 1-2.

III. DISCUSSION

The Lanham Act permits the court to award “reasonable” attorney fees to “the prevailing party” in “exceptional” cases. 15 U.S.C. § 1117(a). Here, neither party disputes that each of the 14 Plaintiffs who prevailed on at least one claim under the Lanham Act is a “prevailing party.” See Doc. 58 at 1-2; Doc. 62 at 1, ¶ 2. However, the parties dispute (1) whether this case qualifies as “exceptional,” (2) whether Plaintiffs’ requested fees are “reasonable” and (3) whether Plaintiffs’ may recover non-taxable expenses. Doc. 62 at 1-2, ¶¶ 3, 7, 8.

A. Defining “Exceptional” Cases

Plaintiffs argue this case is exceptional for four reasons: (1) Flirts recklessly, intentionally and deliberately used Plaintiffs’ images despite Plaintiffs’ requests that the images be removed; (2) Flirts never disputed that it used Plaintiffs’ images in its advertising without their consent; (3) Flirts’ owner and manager, Mirzet Dizdarevic, owns a second gentlemen's club that has been sued for similar infringements, demonstrating a “habitual nature” of wrongful use; and (4) Flirts litigated the action in an unreasonable manner. Doc. 58-1 at 1-3. Flirts argues this case is not exceptional because it did not recklessly, deliberately or intentionally leave Plaintiffs’ images on its website, the jury's verdict reflects the substantive strength of its litigating position and that it did not litigate in an unreasonable manner. Doc. 62-1 at 2-3.

An “exceptional case” under the Lanham Act is a case that is “uncommon, not run-of-the-mill.” Safeway Transit LLC v. Discount Party Bus, Inc., 954 F.3d 1171, 1182 (8th Cir. 2020) (internal quotations omitted). “An ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014) (applying “exceptional” language analysis to patent statutes)).

District courts are to determine whether a case is “exceptional” by considering the totality of the circumstances. Octane Fitness, 572 U.S. at 554, 134 S.Ct. 1749. A list of non-exhaustive factors may inform this analysis including “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Pocket Plus, LLC v. Pike Brands LLC, 53 F.4th 425, 435 (8th Cir. 2022) (quoting Octane Fitness, 572 U.S. at 554 n.6, 134 S.Ct. 1749). Courts need not find the conduct independently sanctionable to find it exceptional. Pocket Plus, 53 F.4th at 435. A case that presents “either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee award.” Octane Fitness, 572 U.S. at 555, 134 S.Ct. 1749. A case may qualify as exceptional where a party's conduct was “willful and deliberate.” Safeway Transit, 954 F.3d at 1182 (8th Cir. 2020).

Having considered the relevant factors, I find that this case is exceptional so as to merit an award of attorney fees. Although the jury returned mixed verdicts for Plaintiffs on each of the seven claims (see Doc. 54), this court has rejected the assertion that “arguable merit on both sides precludes a case from being ‘exceptional.’ ” See Pocket Plus, L.L.C. v. Runner's High, LLC, 579 F. Supp. 3d 1082, 1087 (N.D. Iowa 2022), aff'd, 53 F.4th 425 (8th Cir. 2022). In Pocket Plus, L.L.C., the court found the case qualified as “exceptional” under the Lanham Act because the plaintiff's factual litigating position was unreasonable, even though the governing law was not. Pocket Plus, 579 F. Supp. 3d at 1089-90 (finding “plaintiff's changing trade dress,” the trademarked item's “long-time presence in the market” and plaintiff's limited exclusive sale of the trade dress made their litigating position unreasonable).

Similarly here, as Plaintiffs point out, Flirts never disputed the fact that it used Plaintiffs’ images as alleged, nor that it failed to obtain permission for use of the images. See Doc. 58-1 at 5. That is not to say Flirts’ position entirely lacked legal merit. For example, in my memorandum opinion and order denying Plaintiffs’ partial motion for summary judgment, I found there were triable issues of fact revolving around “whether the use of the Plaintiffs’ images resulted in the identification of the Plaintiffs.” See Doc. 30 at 11. At trial, however, Flirts did not even attempt to develop this potential issue. It did not present evidence challenging Plaintiffs’ expert witnesses’ conclusions that its advertisements lead to confusion regarding the parties’ affiliation. Nor did it challenge the admissibility of the expert witnesses’ opinions. See, e.g., Johnson v. J.P. Parking, Inc., No. 4:22-cv-00146, Docs. 71, 72, 73, 74, 77, 78 (S.D. Iowa Dec. 8-14, 2023) (motions to strike expert witness opinions under Fed. R. Evid. 702).

Flirts’ defense consisted of calling one witness, Dizdarevic, who testified for roughly 40 minutes. Doc. 53 at 1; Doc. 53-1 at 1. Flirts did not introduce any evidence of its own. See Doc. 53-1 (demonstrating Plaintiffs’ proposed introduction of 93 Exhibits to Flirts’ zero). To put it plainly, Plaintiffs “incurred [their] costs and attorney fees advancing a claim to which [Flirts] raised no viable defense.” Coach, Inc. v. Quinn, No. 8:16-CV-338, 2018 WL 3649605, at *1 (D. Neb. Aug. 1, 2018); see also, Blue Martini Founders, LLC v. Sadle Enters., Inc., No. 8:15-CV-29, 2016 WL 3983254, at *3 (D. Neb. July 25, 2016) (same); Pocket Plus, 579 F. Supp. 3d at 1090-91 (“[T]he Court notes that plaintiff's legal support for its case was weak, but not so weak as to be ‘exceptional.’ ”). Even accepting Flirts’ contention that the jury's verdict “shows that there was substantive strength in” its litigating position, this does not outweigh the uncontroverted evidence that Plaintiffs’ claims and evidence went undisputed. Doc. 62-1 at 2. The substantive strength of Plaintiffs’ litigating position is one factor that makes this case “exceptional.”

In addition, Plaintiffs argue that Flirts was on notice of its unlawful use of images by July 2022, at the latest, but continued using several of Plaintiffs’ images through July 2023, and displayed Plaintiff Acosta's image on its website through trial in March 2024. Id. Flirts argues that its failure to remove Plaintiff Acosta's image was inadvertent and therefore not reckless, deliberate or intentional. Doc. 62-1.

I find Flirts’ continued use of Plaintiffs’ images after it was put on notice of the unlawful conduct to be another factor that makes this case “exceptional.” See, e.g., Safeway Transit, 954 F.3d at 1182 (“Where a defendant's conduct was willful and deliberate, the court may well determine that this is the type of exceptional case for which an award of attorney's fees is appropriate.”); Cmty. of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, 634 F.3d 1005, 1013 (8th Cir. 2011) (finding defendant's continued use of plaintiff's mark was willful and deliberate); Journey Grp. Cos. v. Sioux Falls Constr., LLC, No. CIV 16-4125, 2017 WL 4466585, at *2 (D.S.D. Oct. 5, 2017) (defendant's continued use of plaintiff's registered mark “after being notified of the unlawfulness of their activities, [and] thus forcing Plaintiff into litigation” qualified as “exceptional”).

Finally, Plaintiffs argue this case is exceptional because of the need for deterrence and Flirts’ unreasonable manner in litigating this case. Doc. 58-1 at 9. Plaintiffs assert deterrence is necessary to (1) stop such unlawful conduct in the first instance, (2) deter Flirts’ from continuing such infringement post-suit and (3) deter the use of litigation as a tool to drive up costs. Id. Plaintiffs also argue that Flirts litigated the case in an unreasonable manner by refusing to engage in substantive settlement negotiations and requiring Plaintiffs without medical conditions testify in person. Id. at 9-10.

Although I find Plaintiffs have demonstrated this case is “exceptional” given the strength of their litigating position and Flirts’ continued use of Plaintiffs’ images, I do not find Flirts’ request that Plaintiffs appear to testify in person to be so unreasonable as to be considered exceptional. See Pocket Plus, 579 F. Supp. 3d at 1089 (finding case qualified as “exceptional” where not all plaintiff's challenged conduct was “exceptional”). Additionally, I do not consider the parties’ settlement negotiations nor refusals to settle in determining whether this case is “exceptional.” See Ducks Unlimited, Inc. v. Boondux, LLC, No. 2:14-cv-2885, 2018 WL 1249912, at *7 (W.D. Tenn. Mar. 9, 2018) (finding settlement negotiations were “not relevant” in determining whether compensation and deterrence favored a fee award under the Octane Fitness factors); Coach, Inc. v. Citi Trends, Inc., No. CV 17-4775, 2020 WL 13064695, at *8 (C.D. Cal. July 20, 2020) (“[N]either Defendants nor the Court has the power to force Plaintiffs to settle a case they would otherwise prefer to try to a jury. Their refusal to settle at mediation may have been inconvenient ․ but the fact that Plaintiffs exercised their right not to settle is not [exceptional].”).

Considering the totality of the circumstances, because this case is “one that stands out from others,” I find this case is “exceptional” under the Lanham Act. I will now consider the reasonableness of Plaintiffs’ requested fees.

B. Reasonable Attorney Fees

The starting point in determining the reasonable amount of attorney fees is the lodestar figure, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate. Jet Midwest Int'l Co. v. Jet Midwest Grp., LLC, 93 F.4th 408, 420 (8th Cir. 2024) (quoting Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002)). “A reasonable hourly rate is usually the ordinary rate for similar work in the community where the case has been litigated.” Fish, 295 F.3d at 851 (citing Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001)). The party seeking the award must provide evidence supporting the hours worked and rate claimed. Grain Processing Corp. v. Virgin Scent, Inc., No. 3:21-cv-00019, 2022 WL 19000603, at *2 (S.D. Iowa Dec. 5, 2022) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

1. Hourly Rate

Plaintiffs request attorney fees for 227.3 hours of work at a rate of $500 per hour. Doc. 58-1 at 11. They assert such rate is reasonable because it is in line with nationally accepted rates for Lanham Act litigation and is supported by prevailing rates of the State Bar of Michigan, where Plaintiffs’ lead counsel is based. Id.; see also Doc. 58-2 at 3, ¶ 15. Further, Plaintiffs argue that to the extent the proposed hourly rate is higher than the Iowa market, I should adopt a national perspective to find their proposed rate reasonable. Doc. 58-1 at 11. Flirts argues Plaintiffs’ requested rate of $500 per hour is unreasonable for Cedar Rapids, Iowa. Doc. 62-1 at 4.

Plaintiffs have submitted two reports and one declaration (Aronowitz Declaration) in support of the $500 hourly rate. In the first report (Doc. 58-3), the State Bar of Michigan 2023 Economics of Law Survey Results, Plaintiffs demonstrate that the average billing rate for Michigan counsel in a like position is between $425 and $700 per hour. Doc. 58-2 at 3-4, ¶ 15; Doc. 58-3 at 6-10, 12. In the second report (Doc. 58-4), the Iowa State Bar Association 2023 Economic Survey, Plaintiffs acknowledge that only 9% of Iowa attorneys reported a typical hourly rate of $375 per hour or more and that a majority of Iowa attorneys’ rates are between $200 and $324 per hour. Doc. 58-2 at 4, ¶ 16; Doc. 58-4 at 30-31.

Several recent cases awarding attorney fees inform my analysis. First, in Pocket Plus, this court determined that the highest reasonable hourly rate for attorneys based in Des Moines, Iowa, for Lanham Act litigation was $350 per hour. Pocket Plus, 579 F. Supp. 3d at 1094. Later that same year, in Liquid Capital Exchange, Inc. v. BDC Group, Inc., No. 20-CV-89, 2022 WL 15045058, at *6 (N.D. Iowa Oct. 26, 2022), this court awarded attorney fees in a breach of subcontract action after reducing the requested hourly rate “to match their Iowa counterparts.” There, the court found a rate of $250 an hour to be reasonable because it matched local counsel's billing rate. Id. (finding that where “plaintiff used local counsel in conjunction with out-of-town counsel,” the court was to apply the local hourly rate “even for out-of-town counsel”) (citing Emery, 272 F.3d at 1048). More recently in InterCon Construction, Inc. v. Team Industrial Services, Inc., No. 18-CV-2081, 2023 WL 2403149, at *5 (N.D. Iowa Mar. 8, 2023), this court reduced the hourly rate for Wisconsin-based attorneys in a breach of contract and contractual indemnification action from $495 to $300 per hour. See id. at *5 n.22 (collecting cases).

Plaintiffs cite several cases from the Southern District of Iowa in support of the $500 hourly rate. See, e.g., Ankeny Hotel Assoc., LLC v. OSK X, LLC, 663 F. Supp. 3d 947, 966 (S.D. Iowa 2023) (finding rates of $600 and $495 per hour “not unreasonable”); Grain Processing Corp., 2022 WL 19000603, at *2 (finding hourly rates between $445 and $485 “reasonable given counsel's experience and expertise”); Animal Legal Defense Fund v. Reynolds, 385 F. Supp. 3d 840, 846-47 (S.D. Iowa 2019) (reducing requested rates from $550 to $475 per hour, $650 to $500 per hour and $550 to $475 per hour). These cases rely on either a national market or the Des Moines market for attorney fees. See Ankeny Hotel Assoc., 663 F. Supp. 3d at 966 (relying on a national market); Reynolds, 385 F. Supp. 3d at 847 (relying on Des Moines market).

I find the relevant legal market in this case is Cedar Rapids, Iowa, where this case was brought and tried. Contra Johnson, No. 4:22-cv-00146, Doc. 1 (S.D. Iowa May 3, 2022) (demonstrating a similar action by Plaintiff Toth Gray and Plaintiffs’ counsel in the Southern District of Iowa); see also InterCon Constr., No. 18-CV-2081, 2023 WL 2403149, at *5 (comparing rates of Des Moines counsel with lower rates of Cedar Rapids counsel). While Plaintiffs’ counsel brought specialized knowledge, experience and efficiency to this complex trademark action, I find that Plaintiffs have not established $500 per hour is a reasonable rate in the Cedar Rapids market. However, given counsel's expertise, I find a rate of $400 an hour to be reasonable. See Pocket Plus, 579 F. Supp. 3d at 1094 (finding reasonable hourly rate of $350); see also Grain Processing Corp., 2022 WL 19000603, at *2 (“Although these rates are slightly higher than amounts previously approved, the higher rate is justified by the passage of time and inflation.”).

2. Hours Charged

Plaintiffs seek attorney fees for 227.3 hours of work. Doc. 58-1 at 11. Flirts argues that Plaintiffs are not entitled to recover attorney fees for any work relating to their non-Lanham Act claims and specifically requests that I exclude the 16.1 hours Plaintiffs’ counsel spent on the motion for partial summary judgment. Doc. 62-1 at 3.

A court should exclude from an initial fee calculation requested hours that were not reasonably expended. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. “Once a party is found to have prevailed, a fee award should not be reduced merely because a party did not prevail on every theory raised in the lawsuit.” Casey v. City of Cabool, 12 F.3d 799, 806 (8th Cir. 1993) (quoting Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir. 1991)) (internal quotations omitted). If a case involves multiple claims, where the successful and unsuccessful claims are inextricably intertwined and involve a common core of facts or are based on related legal theories, the court may award the entire fee. Dorr v. Weber, 741 F. Supp. 2d 1022, 1031 (N.D. Iowa 2010) (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933 (1933)). The dispositive consideration is whether the issues upon which Plaintiffs’ counsel spent time are interrelated to the central issues of the case. Casey, 12 F.3d at 806.

I find the litigation of Plaintiffs’ common law and Lanham Act claims are inextricably intertwined and involve a common core of facts and related theories. See Schultz v. Amick, 955 F. Supp. 1087, 1112 n.15 (N.D. Iowa 1997) (finding “state common-law claims” in a 42 U.S.C. § 1983 action “were based on essentially the same core of facts”). Therefore, I will not exclude the 16.1 hours Plaintiffs spent on their motion for partial summary judgment, either because it was unsuccessful or because it was focused on Plaintiffs’ common law claims. Flirts does not argue, and I do not find, Plaintiffs’ requested time to be excessive or overstaffed. Rather, I find all of Plaintiffs’ counsel's 227.3 hours are well catalogued and reasonable given the life, complexity and quantity of the litigation. See Doc. 58-2 at 6, ¶ 20; Doc. 58-5; see also Monohon v. BNSF Ry. Co., 607 F. Supp. 3d 874, 877-78 (S.D. Iowa 2022) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)) (“It must also be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee․”).

Calculating the lodestar amount of 227.3 hours of work at a reasonable hourly rate of $400 per hour, the new lodestar figure for Plaintiffs’ attorney fees is $90,920.00.

C. Non-taxable Litigation Expenses

Plaintiffs request non-taxable expenses in the amount of $60,468.72. See Doc. 58-1 at 13. This includes expert witness fees, lodging and travel expenses for five Plaintiffs who testified in person at trial and travel and lodging expenses for lead counsel at trial. Flirts argues that Plaintiffs are not entitled to recover expert witness fees as non-taxable costs. Doc. 62-1.

Absent explicit statutory or contractual authorization, “federal courts are bound by the limitations [on expenses] set out in 28 U.S.C. § 1821 and § 1920.” Jet Midwest, 93 F.4th at 422 (quoting Johnson Tr. of Operating Eng'rs Loc. #49 Health & Welfare Fund v. Charps Welding & Fabricating, Inc., 950 F.3d 510, 527 (8th Cir. 2020)). Federal Rule of Civil Procedure 54(d)(1) provides that absent statute, rule or court order, “costs -- other than attorney's fees – should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). The Lanham Act provides for the recovery of costs and, in exceptional cases, attorney fees. 15 U.S.C. § 1117(a). A prevailing party is presumptively entitled to recover all of its costs under Rule 54(d). Jet Midwest, 93 F.4th at 422 (citing In re Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005)). “However, such costs must be set out in 28 U.S.C. § 1920 or some other statutory authorization.” Jet Midwest, 93 F.4th at 422 (quoting Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006)).

Section 1920 does not explicitly authorize retained expert witness fees to be taxed as “costs.” See 28 U.S.C. § 1920; Jet Midwest, 93 F.4th at 422-23. Neither does the Lanham Act. See Lawn Managers, Inc. v. Progressive Lawn Managers, Inc., No. 4:16 CV 144, 2018 WL 4184343, at *4 (E.D. Mo. Aug. 31, 2018) (comparing language of 42 U.S.C. § 1988 with 42 U.S.C. § 2000e-5(k)). The Eighth Circuit Court of Appeals has explained that taxing expert witness fees as costs is “strictly limited.” Johnson, 950 F.3d at 527. However, some litigation expenses can be awarded as attorney fees under a federal fee-shifting statute if they are separately billed under the prevailing practice in the community. Id. at 528. This includes attorney travel expenses, however, “expert witness fees are generally not part of attorney's fees.” Id.

Plaintiffs’ have not demonstrated that their expert witness fees should be awarded as part of their attorney fees. Section 1821 limits the witness fees authorized by § 1920 to “$40 per day for each day's attendance” and requires a witness traveling by common carrier to be paid for the “actual expenses of travel.” 28 U.S.C. § 1821(b)-(c). Additionally, § 1821 provides for “subsistence allowance” when an overnight stay is required. Id. § 1821(d). Those costs have already been taxed for Plaintiffs’ expert witnesses in accordance with § 1821. See Doc. 61 at 2.

Because the Lanham Act does not explicitly authorize recovery for fees for expert witnesses, Plaintiffs’ request for expert witness travel fees as part of their request for attorney fees is denied.⁴ See Lawn Managers, No. 4:16 CV 144, 2018 WL 4184343, at *4 (denying expert witness fees as attorney fees in Lanham Act action); Orduno v. Pietrzak, 932 F.3d 710, 720 (8th Cir. 2019) (affirming district court's denial of reimbursement cost for forensic expert because statute “d[id] not explicitly authorize the taxation of the expert witness fees as costs”); Emmenegger v. Bull Moose Tube Co., 33 F. Supp. 2d 1123, 1136 (E.D. Mo. 1998) (finding that absent express mention of expert fees in statute, statute “d[id] not authorize a court to award such fees in excess of § 1821’s limits”); Jet Midwest, 93 F.4th at 422 (reaffirming that expert witness fees “are generally not part of the attorney's fees” and remanding for further distinction between district court's award of fees and costs).

By contrast, the travel expenses for the five Plaintiffs who testified at trial, and for Plaintiffs’ lead counsel, are recoverable as attorney fees. Plaintiffs have demonstrated the travel and lodging for these parties were litigation expenses. See Johnson, 950 F.3d at 528 (“Litigation expenses may be included in attorney's fees”); Sturgill v. United Parcel Service, Inc., 512 F.3d 1024, 1036 (8th Cir. 2008) (finding district court did not abuse discretion when including attorney travel expenses in its award of attorney fees under 42 U.S.C. § 2000e-5(k)); Safelite Grp., Inc. v. Rothman, 759 F. App'x 533, 536 (8th Cir. 2019) (affirming award of attorney fees for travel expenses of out of state counsel). Therefore, I will award Plaintiffs a total of $3,095.50 in non-taxable expenses.⁵ When combined with the lodestar amount of $90,920.00, the total award will be $94,015.50.

IV. CONCLUSION

For the reasons set forth herein, Plaintiffs’ motion (Doc. 58) for attorney fees is granted in part. Plaintiffs are hereby awarded attorney fees pursuant to 15 U.S.C. § 1117(a) in the total amount of $94,015.50.

IT IS SO ORDERED this 14th day of August, 2024.

FOOTNOTES

1.   Plaintiffs Jesse Golden and Julianne Klaren do not seek attorney fees, as they did not prevail on either of their claims under the Lanham Act. See Doc. 54 at 1-2, Doc. 58 at 1.

2.   The judgment for the 14 moving Plaintiffs totaled $123,500. Doc. 58 at 1.

3.   The bill of costs included attendance, subsistence and mileage fees for Plaintiffs’ two expert witnesses. Doc. 61 at 2. In total, Flirts has been taxed $2,333.74 in witness fees for those witnesses. Id.

4.   Plaintiffs’ request for expert witness travel expenses in any of the amounts described in their motion is denied. See Doc. 58 at 2 (describing the expert witness fees as “$56,772.00 combined for Maronick and Chamberlin report and testimony invoices less two $40.00 witness attendance fees requested as taxable costs, for an expert witness fee subtotal of $56,692.00, or $57,846.79 inclusive of $354.30 in hotel charges above the GSA limits”).

5.   This consists of the travel expenses of the five Plaintiffs who testified in person, $889.20, plus lead counsel's travel and expenses at trial, $2,206.30. Doc. 58 at 2.

Leonard T. Strand, United States District Judge