United States District Court, D. South Dakota, Western Division
EQUITY PARTNERS HG, LLC and HERITAGE GLOBAL PARTNERS, INC., Plaintiffs,
SAMSON, INC.; BLACK EARTH, LLC; and KENNETH PRICE, Defendants.
JEFFREY L. VIKEN, CHIEF JUDGE.
January of 2018, plaintiffs brought this diversity action
alleging breach of contract, unjust enrichment and tortious
interference with a contract. (Docket 1). Now pending before
the court is plaintiffs’ motion for service costs and
attorney’s fees. (Docket 27). Plaintiffs assert
defendants refused to waive service without good cause.
Defendants respond that defendants improperly sent the
request to waive service and that plaintiffs unnecessarily
incurred service expenses without giving defendants the
opportunity to waive service. (Docket 29). Defendants also
contest the amount of attorney’s fees plaintiffs seek.
(Docket 32). For the reasons given below, the court finds
defendants must pay service costs and attorney’s fees
to plaintiffs but disagrees with plaintiffs’
calculation of those costs.
communicated with defense counsel Nathan Chicoine prior to
filing the complaint. (Docket 27-1 at pp. 2-4). On January
29, 2018, plaintiffs’ counsel asked Mr. Chicoine via
e-mail if he would waive service on behalf of defendants.
Id. at p. 2. Plaintiffs’ counsel followed up
on this request on January 31 and March 2. Id. at
pp. 1-2. On March 6, Mr. Chicoine informed plaintiffs he was
not representing defendants. Id. at p. 1. Plaintiffs
then attempted to personally serve defendants and were
unsuccessful. See Docket 7 at pp. 1-2 (describing
30, plaintiffs’ counsel contacted defendant Kenneth
Price-who is also the registered agent for defendants Samson,
Inc. and Black Earth Inc.- by e-mail with a waiver request.
(Docket 27-5). Plaintiffs also sent the waiver request to
defendant Price’s home by FedEx. Id. In June,
plaintiffs hired law enforcement local to defendant Price to
complete service, which was also unsuccessful. (Docket 27-6).
Defendants never returned the service waivers. Defendant
Price asserts he was away from his home in March, April and
May of 2018. (Docket 28 at ¶¶ 6-8). He does not
assert he was away from home in June, but states he does not
recall receiving any FedEx package and never refused service.
Id. at ¶¶ 9-10. Defendant Price further
states he does not monitor the e-mail address plaintiffs used
to contact him. Id. at ¶ 11.
27, the court authorized plaintiffs to complete service by
publication. (Docket 13). Plaintiffs published notice in the
Rapid City Journal and the Black Hills Pioneer. (Dockets
17-19). The publication ended on August 15. On September 6,
defendants answered the complaint through Mr. Chicoine.
(Docket 21). Defendant Price now states he was unaware of
this action until notice was published in the Journal and the
Pioneer. (Docket 28 at ¶ 13). He further states he hired
counsel in August. Id. at ¶ 14.
Rule of Civil Procedure 4(d)(2) states:
If a defendant located within the United States fails,
without good cause, to sign and return a waiver requested by
a plaintiff located within the United States, the court must
impose on the defendant: the expenses later incurred in
making service; and the reasonable expenses, including
attorney’s fees, of any motion required to collect
those service expenses.
Fed. R. Civ. P. 4(d)(2)(A)-(B). Defendants “ha[ve] a
duty to avoid unnecessary expenses of serving the
summons.” Fed.R.Civ.P. 4(d)(1).
as here, the applicable fee-shifting provision does not
explain how to calculate attorney’s fees, the court
uses the lodestar method. See Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 550-51 (2010).
The most useful starting point for determining the amount of
a reasonable fee is the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate.
This calculation provides an objective basis on which to make
an initial estimate of the value of a lawyer’s
services. The party seeking an award of fees should submit
evidence supporting the hours worked and rates claimed. ...