Crooked Creek Properties, Inc. v. Hutchinson et al
Filing
49
MEMORANDUM OPINION AND ORDER as follows: (1) Dfts George Hutchinson and Donald Hutchinson are awarded $2,500.00 in attorneys' fees and $35.95 in costs in connection with the appeal, No. 10-14477, against Plf; and (2) Dft David A. McDow ell is awarded $11,202.50 in attorneys' fees and $664.77 in costs in connection with the appeal, No. 10-14477, against Plf; A separate judgment on attorneys' fees and costs will be entered. Signed by Chief Judge William Keith Watkins on 5/2/2013. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CROOKED CREEK PROPERTIES,
INC.,
Plaintiff,
v.
GEORGE HUTCHINSON, et al.,
Defendants.
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CASE NO. 2:09-CV-1104-WKW
MEMORANDUM OPINION AND ORDER
The Court of Appeals for the Eleventh Circuit affirmed this court’s dismissal
of Plaintiff’s Complaint. Finding Plaintiff’s appeal frivolous, the Eleventh Circuit
awarded attorneys’ fees and costs to Defendants pursuant to Federal Rule of
Appellate Procedure 38 and remanded for a determination of those fees and costs.
Upon remand and as ordered, Defendants filed briefs, together with supporting
documentation. (See Order (Doc. # 46); see also Docs. # 47, 48.) Although given an
opportunity, Plaintiff has not objected or otherwise responded to Defendants’
submissions. Based upon careful consideration of the evidence, the court awards
Defendants George Hutchinson and Donald Hutchinson $2,500.00 in attorneys’ fees
and $35.95 in costs, and Defendant David A. McDowell $11,202.50 in attorneys’ fees
and $664.77 in costs, all in connection with the appeal, No. 10-14477.
I. DISCUSSION
A.
Attorneys’ Fees
The court calculates attorneys’ fees based upon the lodestar method. See
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, ----, 130 S. Ct. 1662, 1672 (2010).
The “lodestar” figure equals the reasonable hourly rate multiplied by the hours
reasonably expended, and a strong presumption of reasonableness attaches to the
lodestar calculation. Id. at 1673. Based upon the affidavits and time records, the
court finds that the defense attorneys’ requested hourly rates are reasonable.1 The
court also finds that the hours these attorneys billed are reasonable and are not
“excessive, redundant, or otherwise unnecessary.” Am. Civil Liberties Union v.
Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (internal quotation marks omitted).
Defendants do not seek an enhancement of the lodestar figures. And on this record,
the court finds that the lodestar figures represent reasonable attorneys’ fees:
1
Following the practice of this district, the court applies these rates for purposes of this
fee petition only. See Speer v. Meeks, No. 10cv671, 2011 WL 3703966, at *2 (M.D. Ala. Aug.
24, 2011); Matthews v. City of Dothan, No. 04-640, 2008 WL 450433, at *2 (M.D. Ala. Feb. 15,
2008); Anderson v. Unum Life Ins. Co. of Am., No. 01-894, 2007 WL 604728, at *9 (M.D. Ala.
Feb. 22, 2007).
2
Attorney
Hourly Rate
Hours Expended
Fees (Lodestar
Figures)
David A. McDowell
$200.00
12.5
$2,500.00
Jeffrey L. Luther
$175.00
19.1
$3,342.50
Jonathan R. Maples
$150.00
42.3
$6,345.00
D. Trice Stabler
$150.00
10.1
$1,515.00
In sum, the Hutchinson Defendants will receive $2,500.00 in attorneys’ fees
for Mr. McDowell’s representation in connection with the appeal, and Defendant
McDowell will receive $11,202.50 in attorneys’ fees for Mr. Luther’s, Mr. Maples’s,
and Ms. Stabler’s representation in connection with the appeal.2
B.
Costs
Defendants’ requested appeal costs fall into three categories: (1) costs for
printing and binding appellate briefs; (2) an original admission fee for Mr. Maples to
practice in the Eleventh Circuit; and (3) the malpractice insurance deductible Mr.
McDowell paid for a defense of the claims brought against him in this lawsuit. The
costs requested are as follows:
2
Mr. McDowell is both a defendant and counsel of record. Mr. McDowell represents the
Hutchinson Defendants. Mr. Luther and Mr. Maples are counsel of record for Mr. McDowell.
3
Document
Eleventh Circuit
Reproduction & Admission Fee for
Binding
Mr. Maples
Jeffrey L. Luther
for Mr. McDowell
$494.77
David A. McDowell
for the Hutchinsons
Malpractice
Insurance
Deductible
$35.95
Jonathan R. Maples
for Mr. McDowell
$170.00
David A. McDowell
as a Defendant
$2,500.00
Three sources of authority for taxing appellate costs are relevant here: (1) 28
U.S.C. § 1920; (2) Fed. R. App. P. 393; and (3) 11th Cir. R. 39-1. Based upon the
statutory and rule authority, the court finds that the document reproduction and
binding costs and the admission fee qualify as taxable costs, but that the malpractice
insurance deductible does not.
First, the costs for document reproduction and binding are taxable under Rule
39. See Fed. R. App. P. 39(c) (permitting taxation of the “cost of producing necessary
copies of a brief or appendix”). Additionally, absent objection from Plaintiff, the
court finds that these costs are reasonable.
3
See Advisory Committee Note to Fed. R. App. P. 39, 1967 Adoption, subdivision (a)
(providing that the “[s]tatutory authority for taxation of costs is found in 28 U.S.C. § 1920”).
4
Second, as to the $170.00 admission fee paid for Mr. Maples to practice in the
Eleventh Circuit, the issue is whether this fee qualifies under § 1920(l) as a “fee[ ] of
the clerk.” § 1920(l). Pursuant to 28 U.S.C. § 1913, the Judicial Conference of the
United States sets the fees for each court of appeals, and the Judicial Conference’s
Schedule of Fees includes a fee for “original admission of attorneys to practice.” See
Judicial Conference Schedule of Fees, Court of Appeals Miscellaneous Fee Schedule
¶ 13. Based upon §§ 1920(1) and 1913, the court finds that the $170.00 fee is taxable
as a clerk’s fee. Cf. Butler v. Wright, No. 06cv165, 2010 WL 599387, at *5 (M.D.
Fla. Feb. 16, 2010) (finding pursuant to 28 U.S.C. § 1914(b) that an original attorney
admission fee to practice in the district court was taxable based upon the Judicial
Conference’s Schedule of Fees).
Third, the $2,500.00 insurance deductible Mr. McDowell paid to his
malpractice insurer to defend him in this lawsuit is not a taxable cost. Mr. McDowell
cites no authority, and the court is aware of none, that would permit recovery of this
payment as a cost. Neither § 1920 nor the relevant rules contain a provision for an
insurance deductible. Consequently, Mr. McDowell cannot recover the $2,500.00
paid to his malpractice insurer. In sum, there being no objection by Plaintiff, the
court will award $35.95 in costs to the Hutchinson Defendants and $664.77 in costs
to Defendant McDowell.
5
II. CONCLUSION
Pursuant to the Eleventh Circuit’s mandate and Rule 38 of Federal Rules of
Appellate Procedure, it is ORDERED as follows:
(1)
Defendants George Hutchinson and Donald Hutchinson are awarded
$2,500.00 in attorneys’ fees and $35.95 in costs in connection with the appeal, No.
10-14477, against Plaintiff; and
(2)
Defendant David A. McDowell is awarded $11,202.50 in attorneys’ fees
and $664.77 in costs in connection with the appeal, No. 10-14477, against Plaintiff.
A separate judgment on attorneys’ fees and costs will be entered.
DONE this 2nd day of May, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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