United States District Court, D. South Dakota, Southern Division
DETERMINATION OF REASONABLE ATTORNEYS'
E. SCHREIER UNITED STATES DISTRICT JUDGE
court's February 16, 2016 Memorandum Opinion and Order
(Docket 281), the court awarded plaintiff, Sprint
Communications Company, damages on its Count 1 against
defendant, Native American Telecom (NAT). The court also held
that Sprint was entitled to reasonable attorney's fees
under 47 U.S.C. § 206. Docket 281 at 10. Sprint filed a
Motion to Determine Reasonable Attorney's fees. Docket
326. NAT filed a Memorandum opposing Sprint's motion.
facts of this case are more fully set forth in the
court's August 7, 2015 order granting in part and denying
in part cross motions for summary judgment from both parties.
See Docket 250. But a short summary of the facts are
provides nationwide long-distance telephone services and is
known under the telecommunications regulatory framework as an
interexchange carrier (IXC). Sprint delivers long-distance
calls to a local exchange carrier (LEC) for termination to
end-users. Under the FCC's current regulatory framework,
Sprint pays the LEC a terminating access charge based on the
LEC's interstate access tariff, which is filed with the
October 2008, the Crow Creek Sioux Tribal authority
authorized NAT to provide telecommunications service on the
Crow Creek Reservation subject to the tribe's laws. Under
the 2008 approval order, NAT began to operate as an LEC. NAT
also operates a free conference calling system (used for
conference calling, chat-lines, and similar services) in
connection with Free Conferencing Corporation (Free
Conferencing). A party using NAT's services does not pay
NAT for the conference call, but rather is assessed charges
by the party's telecommunications provider. NAT then
bills the telecommunications provider an access fee as
defined in its interstate tariff. NAT's access charges,
which were billed to Sprint for conference calls, are at
paying two of NAT's bills for charges connected to
conference calls, Sprint ceased paying NAT's terminating
access tariffs because Sprint believed that NAT was involved
in a traffic-pumping scheme, otherwise known as access
stimulation, to generate traffic from free conference calls
and chat services. On August 16, 2010, Sprint filed suit
against NAT alleging a breach of the Federal Communications
Act (FCA) and a state-law unjust enrichment claim. Docket 1.
March 8, 2011, NAT amended its answer and asserted
counterclaims against Sprint alleging a breach of contract
and a collection action under its tariffs, a breach of
implied contract resulting from a violation of its tariffs,
and a quantum meruit/unjust enrichment claim. NAT also sought
declaratory relief. Docket 99. On February 22, 2012, this
court granted Sprint's then-pending motion to stay this
proceeding and referred three issues to the FCC for
resolution. Docket 141 at 25. This court also directed the
parties to issue periodic updates describing the status of
the FCC proceeding. Because of the limited progress on the
FCC referral, a telephonic status conference was held on July
23, 2014. See Docket 164. During the status
conference, the court proposed entering an order that would
lift the stay, withdraw the issues that had been referred to
the FCC, and establish deadlines for the parties to amend the
complaint, counterclaims, and to file any motions to dismiss.
Docket 169 at 12. The court also stated that it would rule on
any motions to dismiss based on a statute of limitations
defense and that a new referral of issues to the FCC could
then be discussed. Id. With the parties in
agreement, a formal order was issued that same day.
See Docket 168.
February 26, 2016, the court awarded Sprint monetary relief
on Count I of Sprint's complaint. Docket 281. Because
Sprint was awarded monetary damages on Count I, the court
determined that Sprint was entitled to an award of reasonable
attorney's fees. Id. at 10. A partial judgment
in the amount of $29, 565.35 was entered by the court in
favor of Sprint on March 17, 2016. Docket 288. On August 4,
2016, the court entered judgment against NAT and in favor of
Sprint on the remaining claims. Docket 325. Sprint used
Briggs and Morgan, P.A. (Briggs) as outside counsel on this
case. Docket 330 at 2. Briggs is a Minneapolis based firm.
Docket 327 at 6. Sprint also retained Tommy Tobin, a South
Dakota attorney, to assist on the case. Docket 329 at 2.
requests a total of $690, 617.25 in attorney's fees for
2, 056.85 hours spent on this litigation. Docket 327 at 2.
Sprint contends that this award is the result of a reasonable
number of hours spent on the litigation multiplied by a
reasonable hourly rate. Id. NAT acknowledges that
Sprint is entitled to attorney's fees, but alleges that
it must apportion its fees to work done solely on Count I in
its Complaint. Docket 337 at 12. Thus, NAT believes that
Sprint should only be awarded $10, 000 in attorney's
fees. Id. at 14.
Whether Sprint can only recover fees related to Count
first objects to Sprint's requested attorney's fees
because it argues that Sprint may only recover attorney's
fees related to Count I. This court found that Sprint is
entitled to an award of attorney's fees under 47 U.S.C.
§ 206. Docket 281 at 10. Section 206 of the
Communications Act provides:
In case any common carrier shall do, or cause or permit to be
done, any act, matter, or thing in this chapter prohibited or
declared to be unlawful, or shall omit to do any act, matter,
or thing in this chapter required to be done, such common
carrier shall be liable to the person or persons injured
thereby for the full amount of damages sustained in
consequence of any such violation of the provisions of this
chapter, together with a reasonable counsel or attorney's
fee, to be fixed by the court in every case of recovery,
which attorney's fee shall be taxed and collected as part
of the costs in the case.
47 U.S.C. § 206.
206 states that, to be entitled to attorney's fees, a
party must be an injured party and the party can only seek
attorney's fees on a “case of recovery.” To
be an injured party within the meaning of § 206, a party
must plead a violation of the FCA and recover damages on its
claim under the FCA. See Conboy v. AT&T Corp.,
241 F.3d 242, 250-51 (2d. Cir. 2001); Swain v. AT&T
Corp., No. 3:94-cv-1088-D, 1997 WL 573464, at *1-2 (N.D.
Tex. Sept. 9, 1997); Am. Tel. & Tel. Co. v. United
Artists Payphone Corp., 852 F.Supp. 221, 225 (S.D.N.Y.
1994). The definition of an injured party within the meaning
of the FCA originates from past decisions relating to the
Interstate Commerce Act. AT&T, 852 F.Supp. at