                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2653
                        ___________________________

                                John Edward Miller,

                       lllllllllllllllllllll Plaintiff - Appellant,

                                           v.

              Kevin R. Dugan; Jerrod Wayne Scott; City of Barling,

                     lllllllllllllllllllll Defendants - Appellees.
                                      ____________

                     Appeal from United States District Court
                 for the Western District of Arkansas - Ft. Smith
                                 ____________

                             Submitted: June 11, 2014
                              Filed: August 21, 2014
                                  ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

       John Miller sued law enforcement officers Kevin Dugan and Jerrod Scott, as
well as the City of Barling, Arkansas, pursuant to 42 U.S.C. § 1983, alleging
violations of his rights under the First and Fourth Amendments to the United States
Constitution. He also brought several tort claims under Arkansas law. The district
court1 entered judgment in Miller’s favor in the amount of $40,000 after Miller
accepted the defendants’ offer of judgment under Federal Rule of Civil Procedure 68.
The district court, after considering filings from the parties, also awarded him
$35,875 in attorney’s fees and $2,115.80 in costs.

      Miller appeals the district court’s denial of prejudgment interest on his state-
law claims. He also disputes the district court’s denial of an evidentiary hearing on
his motion for attorney’s fees and costs, and the court’s ultimate award of attorney’s
fees. We affirm.

                                          I.

       Miller sued Dugan, Scott, and the City in July 2011. His amended complaint,
filed in August 2012, alleged that the officers had violated his First and Fourth
Amendment rights in an April 2010 encounter by conducting unlawful searches and
seizures, using excessive force, and retaliating against him for his speech. He also
brought claims of negligence, assault, battery, wrongful arrest, abuse of process, and
malicious prosecution under Arkansas tort law based on the officers’ conduct.

       In November 2012, after the parties had begun discovery, the officers and the
City tendered an offer of judgment under Federal Rule of Civil Procedure 68 in the
amount of $40,000, plus reasonable attorney’s fees and costs, to settle Miller’s
claims. Miller accepted and notified the district court of the agreement. He
“request[ed] that a judgment . . . be entered showing liability of each of [the] three
defendants to Plaintiff in the amount of $40,000 plus costs and attorney fees.” The
district court accordingly entered judgment for Miller and against the officers and the



      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.

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City jointly in the amount of $40,000. Miller then moved for attorney’s fees and
expenses, as well as prejudgment interest.

       The district court, after considering filings from the parties, granted Miller’s
motion in part and denied it in part. The court declined to award Miller prejudgment
interest. The court awarded Miller $2,115.80 in costs pursuant to 28 U.S.C. § 1920
and $35,875 in attorney’s fees. In calculating the fees, the court applied an hourly
rate of $250 per hour, rather than the $300 per hour requested by Miller’s attorney,
Stephen J. Capron. The court also declined to award fees for the total number of
hours that Miller claimed Capron had spent on the case.

                                          II.

                                          A.

       Miller first argues that prejudgment interest should have been awarded, at least
as to his state-law tort claims. Arkansas law, he posits, provides for prejudgment
interest where the amount of damages is certain or amenable to precise calculation.
See Woodline Motor Freight, Inc. v. Troutman Oil Co., 938 S.W.2d 565, 568 (Ark.
1997). State law, however, does not control whether prejudgment interest should
accompany a judgment entered pursuant to a settlement under Federal Rule of Civil
Procedure 68. See Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 527 (10th Cir. 1992).

       Rule 68 allows a defendant in a civil action to “offer to allow judgment on
specified terms, with the costs then accrued.” Fed. R. Civ. P. 68(a). The offeror, if
his offer is accepted, is thus responsible for paying the “judgment,” as well as the
opposing party’s “costs,” which include attorney’s fees under 42 U.S.C. § 1988. See
Marek v. Chesny, 473 U.S. 1, 7-9 (1985). Consistent with the rule, the officers and
the City offered Miller “the sum of Forty Thousand Dollars ($40,000.00), plus
reasonable attorneys’ fees and costs, to be determined by agreement of the parties or

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by the Court, in full and complete settlement of this claim and cause of action.”
Miller accepted the offer, but in his notice of acceptance he claimed to be “reserving
[his] right to move for an award of costs, fees and interest as the prevailing party to
this action.” Miller then forwarded the agreement to the district court and
“request[ed] that a judgment . . . be entered showing liability of each of [the] three
defendants to Plaintiff in the amount of $40,000 plus costs and attorney fees.”

       Any prejudgment interest to which Miller may have been entitled on his state
tort claims was encompassed in the $40,000 judgment entered by the district court.
“Prejudgment interest is not a ‘cost’ in th[e] narrow sense” that Rule 68 uses the term.
United States v. Am. Commercial Barge Line Co., 988 F.2d 860, 864 (8th Cir. 1993).
Rather, “[i]t is part of the damages suffered by the plaintiff.” Id. The offer in this
case promised a $40,000 judgment, plus reasonable attorney’s fees and costs; it made
no provision for a separate award of prejudgment interest. As the Tenth Circuit said
in Mock, “a Rule 68 consent judgment for a sum certain must, absent indication
otherwise, be deemed to include pre-judgment interest. To hold otherwise would
undermine the purpose of Rule 68.” 971 F.2d at 527 (footnote omitted). Although
Miller purported to “reserv[e]” the right to move for interest in his acceptance of the
offer, the district court correctly concluded that he was entitled to none.

                                          B.

      Miller next argues that the district court contravened Federal Rule of Civil
Procedure 54 when it ruled on his motion for attorney’s fees without convening an
evidentiary hearing. Rule 54 provides in relevant part: “[T]he court must, on a
party’s request, give an opportunity for adversary submissions on the motion [for
attorney’s fees] in accordance with Rule 43(c) or 78.” Fed. R. Civ. P. 54(d)(2)(C).
The rule does not require an evidentiary hearing. To the contrary, it references
Federal Rule of Civil Procedure 78, which states that “[b]y rule or order, the court
may provide for submitting and determining motions on briefs, without oral

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hearings.” Fed R. Civ. P. 78(b). As the advisory committee notes explain, Rule
54(d)(2)(C) “assures the parties of an opportunity to make an appropriate presentation
with respect to issues involving the evaluation of legal services. In some cases, an
evidentiary hearing may be needed, but this is not required in every case.” Fed. R.
Civ. P. 54 advisory committee’s note (discussing 1993 amendments) (emphasis
added). The district court, in compliance with Rule 54(d)(2)(C), considered not only
Miller’s motion and the defendants’ response, but also a reply and sur-reply filed
without leave of court. Nothing more was required by Rule 54.

                                          C.

       Miller contends that the district court’s award of $35,875 in attorney’s fees was
unreasonable. We review the district court’s award of attorney’s fees for abuse of
discretion. See Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005). “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,”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), although a district court has
discretion to adjust the fee to account for other considerations, such as the nature of
the results obtained. Id. at 434. “[T]he fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours expended and hourly
rates.” Id. at 437.

                                           1.

       Miller challenges the district court’s decision that $250 per hour, not the
requested $300 per hour, was a reasonable hourly rate. “A reasonable hourly rate is
usually the ordinary rate for similar work in the community where the case has been
litigated.” Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001). “When determining
reasonable hourly rates, district courts may rely on their own experience and
knowledge of prevailing market rates.” Hanig, 415 F.3d at 825. Based on its

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experience, the court identified the prevailing market rate in the community as $250
per hour.

       Miller argues that the district court abused its discretion by relying on the
prevailing market rate for civil rights litigation in the area of Fort Smith, Arkansas,
because it should have applied Capron’s standard rate in Tulsa, Oklahoma, of $300
per hour. Miller cites Casey v. City of Cabool, Missouri, 12 F.3d 799 (8th Cir. 1993),
in which this court reasoned that “the opportunity cost of the lawyer’s time provides
the starting point for determining a presumptively correct hourly rate,” but continued
that “[o]ther considerations, including the complexity of the litigation and the
relevant market for legal services from which the plaintiff had to choose are also of
relevance.” Id. at 805. Casey does not preclude a district court from considering the
prevailing rate in the local community. More recently, this court discussed Casey
while applying the rule that “a reasonable hourly rate generally means the ordinary
fee for similar work in the community.” Little Rock Sch. Dist. v. Arkansas, 674 F.3d
990, 997 (8th Cir. 2012) (per curiam) (internal quotation omitted).

        Miller contends that the district court should have looked to a broader
community than Fort Smith when determining the prevailing rate for similar
litigation. It is true that we have considered the prevailing rate in the market from
which attorneys have traveled where the attorneys were “leaders in the field” with
“extensive experience,” “able to handle the case in a shorter length of time than a
local lawyer, without comparable experience, would have needed.” Planned
Parenthood, Sioux Falls Clinic v. Miller, 70 F.3d 517, 519 (8th Cir. 2005). But this
flexibility does not mean that a district court is forbidden in the ordinary case to focus
on the community in which the case was litigated.

      Implicit in the district court’s reasoning here is the view that a local lawyer,
adequately versed in civil rights litigation, would have sufficed to attain the result that
Miller received while charging the ordinary Arkansas rate. In other words, Miller’s

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attorney “did not display the excellence, or achieve the time savings, implied by [his]
higher rate[].” Gusman v. Unisys Corp., 986 F.2d 1146, 1151 (7th Cir. 1993). Miller
did inform the court that he had faced difficulty finding a local attorney to take his
case, but the district court—presumed to be “intimately familiar with its local bar,”
Emery, 272 F.3d at 1048 (internal quotation omitted)—reasonably could have
determined that qualified counsel was available in the area to handle this relatively
straightforward case. We therefore see no abuse of discretion.

                                           2.

      Miller also argues that the district court abused its discretion in declining to
award him attorney’s fees for several blocks of time billed by attorney Capron.
“‘[H]ours that are excessive, redundant, or otherwise unnecessary’ must be excluded”
from the district court’s determination of reasonable time expended on the case. El-
Tabech v. Clarke, 616 F.3d 834, 842 (8th Cir. 2010) (quoting Hensley, 461 U.S. at
434).

       Miller challenges the district court’s rejection of Capron’s time spent relating
to a separate civil case in which Miller testified as a non-party witness. Miller argues
that because that case involved allegations against Dugan and the City that were
similar to his, the time invested was analogous to time spent in a hearing or
deposition for his own case. The district court acknowledged that fees could be
awarded for time devoted to separate litigation, if the effort resulted in work product
that was actually used in the instant case, the time spent was inextricably linked to
issues raised in the instant case, and the plaintiff was not otherwise compensated for
counsel’s work in the ancillary proceeding. R. Doc. 45, at 9 (citing Gulfstream III
Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 420 (3d Cir. 1993)). But
the court found that Miller presented no evidence that his testimony in the separate
case, or Capron’s work in preparation for that case, was actually used in Miller’s
lawsuit. Miller has not shown that the court’s finding was clearly erroneous, and we

                                          -7-
see no abuse of discretion in the court’s conclusion that the time was not reasonably
expended on this case.

       The district court also rejected as unreasonable Miller’s claim for 3.5 hours
spent on an “ill-advised and unnecessary” motion to compel attendance at
depositions. When it first denied the motion to compel, the court explained that the
motion failed because the parties had not yet agreed when to hold the defendants’
depositions. Miller contends that the district court should not discount time spent on
any motion, even one that is ill-advised, because he ultimately prevailed in obtaining
a favorable judgment. Miller’s categorical position, however, is inconsistent with the
Supreme Court’s admonition that “excessive, redundant, or otherwise unnecessary”
time should be excluded from an award of attorney’s fees. Hensley, 461 U.S. at 434.

       Miller next contests the district court’s award of attorney’s fees for only one
half the time Capron spent responding to two motions to compel discovery responses
filed by the officers and the City. The court allowed compensation for 5.15 hours;
Miller seeks payment for 10.3 hours. The court concluded that the full amount of
time was not reasonably expended, in part because both motions were resolved
largely in favor of the defendants. We see no abuse of discretion. The district court
has a “superior understanding of the litigation,” id. at 437, and Miller has shown no
error in the court’s reasoning that the time spent was excessive in light of the
unfavorable result.

      Miller challenges the district court’s rejection of 8.7 hours that Capron spent
on discovery issues. The district court awarded Miller attorney’s fees for 2.9 out of
5.8 hours requested for drafting discovery responses, and rejected altogether another
5.8 hours Capron spent “on the same discovery issues” prior to a hearing on one of
the defendants’ motions to compel. The district court reasonably declined to
compensate all of the 5.8 hours spent drafting discovery responses, given that the
court was required to order Miller to supplement his responses and that Miller had to

                                         -8-
correct erroneous information he originally provided the defendants. As for the 5.8
hours the district court denied entirely, Miller has given us no reason to doubt the
court’s conclusion that the additional time spent “on the same discovery issues” was
“excessive under the circumstances.”

       Finally, Miller argues that the district court abused its discretion in rejecting
4.3 hours spent on research for his motion for fees and in awarding fees for only half
of the 5.1 hours requested for drafting the motion and preparing a reply to the
defendants’ opposition. The district court noted that Capron’s normal hourly
rate—proffered as reasonable in part due to his “great deal of experience working on
Civil Rights Act cases”—was inconsistent with the number of hours spent
researching and preparing the motion and the reply. Miller cites the infrequency with
which cases of this type require motions for fees (because, he says, parties typically
settle), but we find this argument unavailing in the face of the district court’s
familiarity with this case and with civil rights litigation more generally.

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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