KSB

Judge Berger's Motions Docket Noticing Instructions

This document contains instructions, samples, and requirements for Judge Berger's Motions Dockets and other hearings.

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Professional Fee and Expense Guidelines

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 PROFESSIONAL FEE AND EXPENSE GUIDELINES

The Honorable Robert D. Berger
United States Bankruptcy Court

I.
Employment Application and Affidavit
A.
Timing
1.
Section 327 - requires court approval of professionals hired by debtor-in-possession or trustee.
2.
Fees will not be approved unless employment has been approved. Nunc Pro Tunc orders will be
allowed where equitable principles so require. Mere neglect by the professional does not
constitute extraordinary circumstances. In re Land, 943 F.2d 1265, 1267-68 (10th Cir. 1991). In re
Ibbetson, 100 B.R. 548 (D. Kan. 1989).

B.
Effect of Approval of Employment
1.
Notwithstanding approval of the application for employment, the Court may disallow
compensation or expenses provided for under the terms and conditions of the employment
application(s), if such terms and conditions prove to have been improvident in light of
developments not anticipated at the time such application(s) was approved.
II.
Fee and Expense Applications
All applications for fees and expenses shall contain the following information. These guidelines provide the
minimum standard. The Court may require additional information in a particular application when the nature of the
case and representations so warrant. Nothing contained herein shall limit the Court’s power under Bankruptcy Code
§§ 326-329 and Local Bankruptcy Rules.

1.
The identity of the applicant and the party the applicant represents;
2.
The date the bankruptcy petition was filed;
3.
The date the applicant moved for employment;
4.
The date of the order granting approval of employment;
5.
A statement of whether it is an interim or final application (if interim, identify whether it is the first,
second, etc., interim application);
6.
A recapitulation of what payments have been made, the source of the payments, the date of the
payments and what compensation and reimbursement amounts have been previously approved by
the Court;
7.
The fee amount and the expense amount requested under such application;
8.
Specific information about the requested expense amount, including:
a.
the date the expense was incurred;
b.
the exact nature of the expense (i.e., the number of copies and cost per copy);
c.
the purpose or need for the expense;
d.
any profit margin, markup or overhead factor being realized on any item of expense;

9.
Specific information about the requested fee amount, including:
a.
The name(s) of the individual(s) who worked on the case, including their title or position
and their hourly rate;
b.
Individual and separate entries for each service performed, identifying:
i.
who performed the work;
ii.
the date the work was performed;
iii.
a description of the work performed and an explanation of the specific nature of
the activity, such as the issue, contested matter, or problem worked on, and
where not self-evident, a statement of the purpose of such work;
iv.
the identity of other parties involved in the work performed;
v.
the amount of time expended in tenths (0.10) of hours; and
vi.
the dollar value at the applicable billing rate;
10.
Applications for expenses of Creditor Committee members and non-attorney professionals must
include copies of all receipts for expenditures. Applications for expenses incurred by attorneys
and their staff need not include copies of receipts.
III.
Expenses
A.
What Is Compensable
1.
Extraordinary photocopying - actual, reasonable and necessary costs
2.
Extraordinary postage expense - actual, reasonable and necessary costs
3.
Long distance telephone calls
4.
Fees charged by Bankruptcy Clerk’s office for copies from the court file
5.
Certified mail, if shown to be required by law
6.
Out-of-town travel, including coach class airfare, tolls, parking, reasonable and necessary lodging
and meals, nonlocal (more than 20 miles, one way, between office and destination) mileage at
Internal Revenue Code rate
7.
Express mail or delivery - actual, reasonable and necessary costs
8.
Telefacsimile charges - actual, reasonable and necessary costs, outgoing faxes allowed only as to
the cost of the long distance call, if any; incoming faxes allowed
9.
Computerized legal research - actual and reasonable costs above monthly subscription fee
10.
Messenger service - actual and reasonable costs
B.
What Is Not Compensable
1.
Ordinary photocopying - routine correspondence
2.
Ordinary postage expense - routine correspondence
3.
Telephone service
4.
Word processing
5.
Court fees
6.
Office overhead, including, but not limited to: rent; utilities; clerical or secretarial wages, salary,
benefits and overtime; local telephone charges
7.
Local travel (20 miles or less, one way, between office and destination)

IV.
Fees
A.
Rate of Compensation for Professionals
1.
Attorney’s Fees
Subject to the Court’s reserved power to limit fees under § 328 of the Bankruptcy Code, local area attorneys
may be compensated at their usual and customary rate. Professionals employed in cases that are of
national scope and present complex issues requiring the skill and experience of attorneys from other parts
of the country may be allowed compensation at their usual and customary rates, again subject to the
Court’s discretion under § 328.

a.
In determining whether a requested fee is reasonable, the Court shall be guided by In re
Permian Anchor Services, Inc., 649 F.2d 763, 768 (10th Cir. 1981), which adopted the
lodestar analysis set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 71719
(5th Cir. 1974), which looks to the following factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill
requisite to perform the legal service properly; (4) the preclusion of other employment by
the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
B.
The Court shall make a separate determination of the necessity of the requested services,
as defined in In re Lederman Enterprises, Inc., 997 F.2d 1321 (10th Cir. 1993), including
whether the services benefitted the bankruptcy estate.

2.
Paralegal Fees
The principles set out above for usual and customary rates for local and national attorneys shall apply to
the rates of their respective paralegal employees. Time entries for a paralegal should not include secretarial
or clerical tasks.

3.
Other Professionals
Other professionals who ordinarily bill on an hourly basis may be allowed their usual and customary rate,
subject to the Court’s discretion. Flat fees for accountants, financial advisors, investment bankers, or
consultants are disfavored and will not be approved unless approved upon prior application for cause
shown.

B.
Compensable components of Attorney’s and Paralegal’s Fees
1. Fee applications - reasonable time spent in preparation of fee application. In re Seneca Oil Co., 65
B.R. 902, 910 (Bankr. W.D. Okla. 1986).
2.
Prepetition - only time spent in preparation for or contemplation of filing bankruptcy.
3.
Personal services - services that benefit the bankruptcy estate are compensable.
4.
Travel - nonlocal (as previously defined) travel compensated at counsel’s usual and customary
hourly rate. Travel must be apportioned among all the cases on which the attorney appears.

5.
Interoffice conferences among attorneys are compensable subject to a showing that they are
reasonable, necessary and not duplicative.
C.
Components of Attorney’s and Paralegal’s Fees That Are Not Compensable
1.
Clerical or secretarial work - filing, organization of files, mailing, copying.
2.
Time spent “educating an untrained apprentice or familiarizing oneself with general Code
provisions or basic law” is not compensable. Attorneys are required to have some minimal level of
expertise. In re Seneca Oil, 65 B.R. 902, 912 (Bankr. W.D. Okla. 1986).


Policy on Granting R. 4001(a)(3) Relief as Matter of Course

Policy on Granting R. 4001(a)(3) Relief as Matter of Course

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 Policy on Granting Rule 4001(a)(3) Relief as Matter of Course

This Court does not grant relief as a matter of course from the 14-day stay of execution
on an Order Granting Relief from the Automatic Stay, provided for in Fed. R. Bankr. P.
4001(a)(3). Many practitioners request this relief and incorporate it into their proposed stay relief
orders without setting forth any basis for the relief requested. Granting this relief as a matter of
routine, particularly in cases where stay relief has been unopposed and is being granted by
default, risks working considerable hardship on debtors, and particularly consumers, by
effectively mooting any post-order remedies or relief they might seek. The Rule grants the Court
wide discretion in shortening or eliminating the 14-day stay upon proper request. The Court
believes this discretion is rendered meaningless if the relief is routinely granted without any
stated basis.

Creditors with cause to seek to shorten or eliminate the 14-day stay pursuant to R.
4001(a)(3) should include in both their motion and proposed order a concise statement of the
basis for shortening or eliminating the stay. Examples of such reasons might be concerns
regarding the maintenance, insurance, or integrity of the collateral. The Court will approve an
order requesting that relief if all parties in interest have approved the order.

The Court appreciates creditors’ lawyers’ cooperation in altering their forms accordingly.

Dated this 7th day of October, 2011.

/s/ Robert E. Nugent
Chief Bankruptcy Judge

U. S. Bankruptcy Court, District of Kansas
/s/ Janice Miller Karlin, Bankruptcy Judge

U.S. Bankruptcy Court, District of Kansas
/s/ Dale L. Somers, Bankruptcy Judge

U.S. Bankruptcy Court, District of Kansas
/s/ Robert D. Berger, Bankruptcy Judge

U.S. Bankruptcy Court, District of Kansas

Pretrial Order - Revised for CM/ECF

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 RDB Revised Pretrial Form 01.27.05.wpd
[FOR USE IN ADVERSARY PROCEEDINGS AND CONTESTED MATTERS]
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS

__________________, ) Case No.
__________________, ) Chapter
)
Debtor(s). )
)
)
)
, )
, )
)
Plaintiff(s), )
)
vs. ) Adversary No. [omit in contested matters]
)
, )
, )
)
Defendant(s). )
)
)


U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
PRETRIAL ORDER

On _______________, 20__, a pretrial conference was held in this case at
, Kansas, before the Honorable (Judge’s Name), Bankruptcy Judge.

1. APPEARANCES
Counsel present and participating were (name of trial counsel) of (firm name) for the
plaintiff, (name of plaintiff) , and (name of trial counsel) of (firm name) for the defendant, (name of
defendant).

2. JURISDICTION AND CONSENT TO FINAL ORDER
The parties to the above-captioned (adversary proceeding) (contested matter) stipulate to the
jurisdiction of the Court and consent to the trial and entry of a final order by the Bankruptcy Court.

3. NATURE OF CASE
[Please set out a brief, general statement of the nature of the case or matter, specifying
applicable statutory references; concisely identify the parties and their respective positions.]

4. AMENDMENTS TO PLEADINGS
There are no amendments to the pleadings.


U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
(or)

________________________ moved to amend his/her/its _________________
to allege ____________________. Having heard the arguments of counsel and being fully informed,
said motion was (overruled) (sustained).

5. DISPOSITIVE MOTIONS
____There are no DISPOSITIVE motions to be filed.

(or)

____Dispositive motions have been filed and are pending as follows:
___________________________________________________________.

(or)

Dispositive motions will be filed by , 20 ; responses/objections to same
will be filed twenty (20) calendar days thereafter pursuant to L.B.R. 7012.1 and/or 7056.1. When all
briefing is complete, the motions will be brought to the Court’s attention for ruling.

6. STIPULATIONS
The parties hereto stipulate and agree that venue is properly laid in this District; that the United
States Bankruptcy Court for the District of Kansas has jurisdiction of the parties hereto and the subject
matter hereof and may try the adversary proceeding to final judgment; that all proper, necessary and


U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
indispensable parties are parties hereto; and to the following facts:

A.
B.
C.
Unless the parties indicate otherwise, the law governing this case is that of the State of Kansas
and the United States Bankruptcy Code.

7. ISSUES AND THEORIES
7.1 Plaintiff’s first theory of recovery
A. Elements: In order to prevail [state theory of recovery, e.g., exception to discharge],
plaintiff must prove: [Identify each element of plaintiff’s first theory of recovery, e.g., false statement,
knowingly made with intent to deceive, etc.]
B. Issues of fact: The following issues of fact relative to the above-referenced elements
must be resolved at trial: [List all issues of fact relevant to the theory of recovery stated above.]
C. Issues of law: The following issues of law relative to the above-referenced elements
must be resolved at trial: [List all issues of law relevant to the above-referenced theory of recovery.]
D. Mixed Issues of Fact and Law: The following mixed issues of fact and law relative to
the above elements must be resolved at trial: [List all mixed issues of fact and law relevant to the above-
referenced theory of recovery.]

U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
7.2 Defendant’s defenses (including affirmative defenses):
A. Elements: In order to prevail on [defense number 1] , defendant must prove:
[Identify elements.]
B. Issues of fact: The following issues of fact relative to the above elements must be
resolved at trial: [All issues of fact relevant to defense number 1]
C. Issues of law: The following issues of law relative to the above elements must be
resolved at trial: [All issues of law relevant to defense number 1]
D. Mixed issues of fact and law: The following mixed issues of fact and law relative to
the above elements must be resolved at trial: [All mixed issues relevant to defense number 1]
7.3 Counterclaims; cross claims; and third party claims:
[Include elements, issues of fact, issues of law and mixed issues in the format specified above
for each and every counter, cross or third-party claim.]

8. RELIEF SOUGHT
[State any non-monetary and monetary relief sought by any party, including amounts, e.g.,
injunctive relief, determination of dischargeability, allowance of claim, secured status, or similar concept,
including an explanation of the basis for the relief. Reference to elements is extremely helpful in this
connection.]


U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
9. BRIEF LIST OF CITATIONS
If the parties desire not to file trial briefs, they must include a list of citations. The lists of
citations should include case and statutory citations and authorities supporting the parties’ respective
theories. Please list citations by identifying them with the appropriate issues of law as follows:

Issue of Law

1.
Citation
1.
2.
[Such a list should be included for each party with respect to each theory.]
10. LIST OF EXHIBITS; REMINDER OF COMPLIANCE
10.1 List of Exhibits
A. Plaintiff’s Exhibits
Plaintiff has identified the following exhibits to be offered into evidence at the
trial of this case:

Title of Document Date Number of Pages

1.
2.

U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
3.
4.
B. Defendant’s Exhibits
Defendant has identified the following exhibits to be offered into evidence at the trial of this
case:

Title of Document Date Number of Pages

1.
2.
3.
10.2 Exchange of Exhibits
Not less than ten (10) calendar days prior to trial, each party shall serve upon each opposing
party a legible copy of each exhibit the proponent intends to introduce at the time of trial.

10.3 Compliance with L.B.R. 9072.1
Counsel are to comply with Local Bankruptcy Rule 9072.1 and to furnish the Court with copies
of all exhibits three (3) business days in advance of trial, together with an exhibit list in a form
substantially in compliance with the form available from the Clerk’s office. (When there are numerous
exhibits, the Court requests that they be submitted in a three-ring binder with tabs or dividers for
reference.)


U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
11. WITNESSES
11.1 Plaintiff’s Witnesses
The names and addresses of witnesses plaintiff intends to call are:
Name Address

A.
B.
C.
11.2 Defendant’s Witnesses
The names and addresses of witnesses defendant intends to call are:
Name Address

A.
B.
C.
11.3 Summary of Testimony
Each party shall file with this Order a concise summary of the anticipated testimony of each and
every witness and any other evidence the party intends to offer. The Order will be returned if the
testimony summaries are not attached.


U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
12. TRIAL
12.1 This case will be set for trial on the Court’s docket as soon as practicable after either
the entry of this Order or this Court’s ruling on any dispositive motions.
12.2 Trial will be to the Court/to the jury.
12.3 Estimated time of trial is ____ days.
12.4 Trial will be in [ ,] Kansas or such other place in the District where
the case may first be reached for trial.
13. FURTHER PROCEEDINGS AND FILINGS
13.1 Status Conference
A pretrial status conference will be scheduled for ____________________; or the Court may
schedule a status conference before the trial begins.

13.2 Trial Briefs
Each party desiring to submit a trial brief shall comply with the requirements of D. Kan. Rule
7.6 as it is made applicable to bankruptcy by L.B.R. 1001.1. Trial briefs shall be served and filed no
less than three (3) business days in advance of trial. Each party filing a trial brief shall deliver an extra
copy to the judge’s chambers at the time of filing. Unless noted below, the Court does not require trial
briefs, but finds them helpful, particularly if the parties anticipate that unique or difficult issues will arise
during trial.

U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
_____ If checked, the Court requires trial briefs be filed on the schedule set out above.

14. ORDERS OF THE COURT
14.1 Except by consent of the parties or by order of the Court to prevent manifest injustice,
exhibits not listed and not described in this Order shall not be admitted into evidence and witnesses not
listed and not identified in this Order shall not testify except in proper rebuttal.
Either party may offer the testimony of witnesses listed by the other and either party may offer into
evidence exhibits listed by the other.
14.2 The pleadings in the above-captioned case are incorporated herein by
reference, but this Order shall control the subsequent course of this action and shall not be modified
except by order of the Court on its own motion or on motion of the parties to prevent manifest injustice.
14.3 The Court finds that this case is at issue, all discovery is complete and
that the case will be ready for trial upon entry of this Order and any order(s) resolving any dispositive
motions. This Order shall supersede the pleadings filed herein in defining issues for trial to the Court.
14. 4 The date of trial will be set by the Court after consultation with the parties and, as such,
will be deemed to be agreed to among the parties. Therefore, a trial setting will likely not be continued.
Parties seeking continuances are advised to refer to D. Kan. Rule 6.1(b) and to note that strict
compliance with same is required as this rule has been adopted by this Court, L.B.R. 1001.1.
###
APPROVED:


U.S. BANKRUPTCY COURT
Final Pretrial Conference Order
(Insert Case Number)
(Insert Case Name)
(Name) (Supreme Court No. )
(Firm Name)
(Address)
(Telephone No.)
Attorney(s) for Plaintiff


(Name) (Supreme Court No. )
(Firm Name)
(Address)
(Telephone No.)
Attorney(s) for Defendant