Gaylor v. Comala Credit Union

Filing 51

OPINION AND ORDER GRANTING 42 MOTION for Attorney Fees and plaintiff Gaylor have and recover from defendant Comala Credit Union the sum of $20,000 in attorney's fees and costs are awarded. Signed by Honorable Judge Myron H. Thompson on 6/1/12. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DANIELLE MARIE GAYLOR,
individually and on
behalf of all others
similarly situated,
Plaintiff,
v.
COMALA CREDIT UNION,
Defendant.

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CIVIL ACTION NO.
2:10cv725-MHT
(WO)

OPINION AND ORDER
Plaintiff Danielle Marie Gaylor, individually and
on behalf of all others similarly situated, filed this
lawsuit against defendant Comala Credit Union claiming
violations

of

the

Electronic

Funds

(“EFTA”), 15 U.S.C. § 1693 et seq.

Transfer

Act

The parties have

settled this case and Gaylor now moves for attorney’s
fees. Comala objects to the requested amount, arguing
that $ 107,746 is an unreasonable fee award because
Gaylor’s

attorneys

used

recycled

and

boilerplate

briefs.

For the reasons that follow, Gaylor’s motion

for attorney’s fees will be granted to the extent that
$ 20,000 will be awarded.

I.

STANDARD FOR ATTORNEY’S FEES

When awarding attorney’s fees, this court must
first calculate the “lodestar” fee: the product of the
number of hours reasonably expended to litigate the
case and the reasonable hourly rate for work performed
by similarly situated attorneys in the community.
Norman v. Housing Authority of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988).

After determining the

lodestar, the court then addresses whether the award
should be adjusted upwards or downwards. Pennsylvania
v. Delaware Valley Citizens’ Council for Clean Air,
478 U.S. 546, 565-66 (1986).
In conducting this inquiry, the court is guided by
the twelve factors set out in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
2

1974).1

See also Hensley v. Eckerhart, 461 U.S. 424,

429-30 (1983) (endorsing the Johnson factors).

These

twelve factors are:
“(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 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.”
Hensley, 461 U.S. at 430 n.3.

1. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of
the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
3

The

fee

applicant

“establishing

bears

entitlement

and

the

burden

documenting

of
the

appropriate hours and hourly rates.” Norman, 836 F.2d
at 1303.

This burden requires “specific and detailed

evidence

from

which

the

court

can

determine

the

reasonable hourly rate[,] ... records to show the time
spent on the different claims, and the general subject
matter of the time expenditures.” ACLU v. Barnes, 168
F.3d 423, 427 (11th Cir. 1999).

A fee applicant must

also exercise “billing judgment” and exclude hours
that

are

“excessive,

unnecessary.”

redundant,

or

otherwise

Hensley, 461 U.S. at 434.

II.

BACKGROUND

The EFTA prohibits owners and operators of ATMs
from imposing transaction fees without notice. Gaylor
filed

suit

alleging

that

Comala

operated

four

Montgomery metropolitan-area ATMs that lacked external
signs

notifying

customers
4

that

they

may

incur

surcharges.

She was represented by the following

attorneys: Eric G. Calhoun of Travis & Calhoun, P.C.;
B.J. Wade of Skouteris & McGee, PLLC; Nicholas Hughes;
and Matthew Alfreds.

She then filed an unopposed

motion for class certification.

Shortly thereafter,

the parties negotiated a class settlement, which was
submitted to this court.
The settlement agreement created a fund in the
amount of $ 42,896.73 to be distributed on a pro-rata
basis

to

every

participating

class

member

who

submitted a claim; a class member’s claim, however,
was capped at $ 100.
payment of $ 2,500.

Gaylor received an incentive

The settlement provided that any

unclaimed funds would be donated to the Public Safety
Insurance Fund of Montgomery, Alabama, a charity that
provides life-insurance policies to firefighters and
police officers.

The parties further stipulated that

attorney’s fees and costs would be awarded separately
from the settlement fund.
5

After
settlement
hearing.

preliminarily
agreement,

approving

this

court

the
held

class
a

and

fairness

No objections or opt-outs to the class

settlement were received.

At the hearing, Gaylor’s

counsel Wade informed the court that approximately ten
individuals had filed claims with the settlement fund.
Comala,

however,

disputed

this

figure

and

has

submitted an email sent by Gaylor’s counsel Calhoun
stating that no claims were submitted prior to the
claim deadline. Gaylor has not offered any proof that
the ten claimants mentioned at the fairness hearing
exist and, therefore, the court assumes that only
Gaylor received money from the settlement fund.

6

III.

DISCUSSION

After taking into consideration the supplemental
and corrected filings,2 Gaylor’s counsel requests the
following fee award:
Attorneys

Hours

Rate

Total

Hughes

67.55

$ 375

$ 25,331.25

Alfreds

48.00

$ 375

18,000.00

Wade

35.05

$ 550

19,277.50

Calhoun

78.40

$ 550

43,120.00

Paralegal

11.45

$ 145

1,660.25

N/A

N/A

357.00

Court Costs
TOTAL
As

$ 107,746.00
an

initial

matter,

the

court

notes

that

Gaylor’s counsel never add up the total amount of
requested fees. In light of the inflated hourly rates
and alleged redundant counting discussed below, the

2.
Comala moves to strike the supplemental
filings as untimely. Because these filings correct
the record and update the fee request for services
rendered at the fairness hearing, the court will take
Gaylor’s supplemental filings into account when
calculating the fee award.
7

court is suspicious that the $ 107,746 figure is
purposefully omitted from Gaylor’s briefing in an
attempt to obscure the total-fee award sought.

A.

Reasonable Hourly Rates

“The rate of attorney’s fees is that of the place
where the case is filed.” Cullens v. Georgia Dep’t of
Transp., 29 F.3d 1489, 1494 (11th Cir. 1994).

This

case

“the

was

filed

in

Montgomery,

Alabama,

and

court’s determination of attorney’s fees must also be
guided by the prevailing market rate.”

Simpleville

Music v. Mizell, 511 F. Supp. 2d 1158, 1163 (M.D. Ala.
2007) (Thompson, J.).
Gaylor has submitted a declaration from Pamela B.
Slate, a local attorney, stating that she is “familiar
with

fees

charged

to

clients

for

non-contingent

litigation-related work at rates ranging from $ 350.00
to $ 550.00 per hour for skilled attorneys and $ 85.00
to

$

150.00

for

skilled
8

paralegals.”

Slate

Declaration (Doc. No. 42-5) at 3.

In light of the

attorneys’ experience, Slate concludes that an hourly
rate of $ 375 is appropriate for Hughes and Alfreds
and a $ 550 hourly rate is reasonable for Wade and
Calhoun.

Both Hughes and Alfreds have practiced law

for under seven years.

By contrast, Wade and Calhoun

have over 20 years of experience.
Comala argues that these rates are unreasonable by
the standards of the legal community in Montgomery.
Comala points to other attorney’s fees cases decided
in this district to ascertain a reasonable hourly
rate.

One example provides: “In this market, the

Court has found the range of $ 300.00 to $ 375.00
applicable

for

attorneys

with

over

20

years

of

experience. It also has found the applicable range for
attorneys with 10 years of experience at $ 200.00 to
$ 250.00, and the applicable range for an attorney one
to two years of experience at $ 160.00 to $ 185.00.”
Alfa Corp. v. Alfa Mortgage, Inc., 560 F. Supp. 2d
9

1166, 1180 (M.D. Ala. 2008) (Watkins, J.).

See also

Simpleville Music, 511 F. Supp. 2d at 1163 (using the
same fee structure).
The court concludes that Gaylor’s fee structure is
unreasonable given Montgomery’s market rates. Slate’s
declaration

is

conclusory

and

fails

to

provide

different rate structures for newly minted attorneys
and seasoned advocates.

Slate’s declaration also

stands in stark contrast to reasonable rates approved
by this court: Hughes’s and Alfred’s rates fall within
the range set by this court for an attorney with over
20 years of experience.

Although opinion testimony

can satisfy the plaintiff’s burden to prove reasonable
hourly rates, “where there is a lack of documentation,
a district court may make an independent judgment
based on its own experience and knowledge concerning
the rates charges by lawyers of similar skill in
similar lawsuits in the same market area.”

Miller v.

Kenworth of Dothan, Inc., 117 F. Supp. 2d 1247, 1254
10

(M.D. Ala. 2000) (DeMent, J.).

Thus, the court

reduces Hughes’s and Alfreds’s hourly rates to $ 200
and Wade’s and Calhoun’s hourly rates to $ 300.

The

court also adjusts Gaylor’s requested hourly rate for
paralegal services to $ 85, the bottom end of the
range provided in Slate’s declaration.

B.

Reasonable Hours

Comala

provides

numerous

examples

double counting by Gaylor’s counsel.

of

alleged

For example,

Comala criticizes Calhoun and Hughes for charging 15.3
and 6.0 hours respectively for drafting the classcertification motion and brief, despite the fact that
these documents are boilerplate and have been used in
prior litigation.

Comala further notes that Gaylor’s

counsel charge for clerical tasks, such as Hughes’s
0.75 hours for filing the complaint.

The court

declines to engage in an entry-by-entry revision of
Gaylor’s counsel’s timesheets and speculation as to
11

the amount of time it takes to edit a document.
Rather, the court will address the inflated hours and
double counting when it considers the Johnson factors.
Nevertheless,

the

court

will

counsel’s hours for two entries.

reduce

Gaylor’s

First, Wade has

filed a notice of correction stating that the 17
hours, charged on September 6, 2011, for a pretrial
conference was in error because no pretrial conference
took place that day.

But rather than fully confess

error, Wade responds that he did not charge for
approximately 12 hours traveling to and attending the
fairness hearing on April 4, 2012.
attorneys

also

attended

the

Because two local

fairness

hearing

and

Wade’s trip from Memphis was superfluous, the court
will

deduct

17

hours

from

Wade’s

fee

request.

Moreover, the error undermines the credibility of all
the hourly entries.
Second, Calhoun has estimated that it will take 20
hours to administer the settlement fund.
12

Given that

there were no objections, opt-outs, or claims (other
than Gaylor’s), the court finds it incredulous that it
will take 20 hours to administer the settlement fund.

C.

The Johnson Factors

After

adjusting

subtracting

from

for

Wade’s

local

rates

and

Calhoun’s

and

hourly

hours,

the

lodestar figure is calculated as follows:
Attorney

Hours

Hughes

67.55

$ 200 $ 13,510.00

Alfreds

48.00

$ 200

9,600.00

Wade

18.05

$ 300

5,415.00

Calhoun

58.40

$ 300

17,520.00

Paralegal

11.45

$

Court Costs

Rate

Total

Total

973.25

N/A

N/A

85

357.00
$ 47,374.25

The court, therefore, will use $ 47,374.25 as the
benchmark for determining the fee award.
finds

five

of

the

Johnson

calculating attorneys fees.
13

factors

The court
useful

in

The first two Johnson factors look to the time and
labor required and the novelty and difficulty of the
questions involved.

The court finds it compelling

that Gaylor’s counsel have recycled filings used in
other

litigation.

Comala

has

provided

numerous

complaints and class-certification briefs that are
nearly identical to those filed in this case.

This

court also notes that Gaylor’s counsel have recycled
briefs

in

this

district.

See,

e.g.,

Complaint,

Kirkland v. ServisFirst Bank, No. 2:10cv713 (M.D. Ala.
Aug. 20, 2010) (Thompson, J.); Plaintiff’s Motion for
Attorney’s Fees, Hart v. Guardian Credit Union, No.
2:10cv855 (M.D. Ala. Apr. 9, 2012) (Albritton, J.).
“An attorney is not entitled to be paid in a case for
the work he or another attorney did in some other
case.”

Barnes, 168 F.3d at 430. By continuously

charging for factual revisions to boilerplate briefs,
Gaylor’s
judgment.”

counsel
This

are

not

exercising

court

will

therefore

14

“billing
take

into

account that many of Gaylor’s counsel’s hours are
“excessive,

redundant,

or

otherwise

unnecessary.”

Hensley, 461 U.S. at 434.
The third Johnson factor examines the skill needed
to perform the legal services provided.

The court is

well aware that class actions are, by definition,
complex. But, while the first draft of a complaint or
class-certification motion may be time consuming and
complex, the revision of these documents for factual
differences does not require the same level of legal
experience.

Additionally, some of the charged hours

are for clerical tasks-–such as Hughes’s filing of the
complaint–-that need not be handled personally by an
attorney.

See Surge v. Massanari, 155 F. Supp. 2d

1301, 1305 (M.D. Ala. 2001) (McPherson, M.J.) (noting
“disapprov[al] of the billing at a professional hourly
rate for services reasonably performed by support
staff, whose salaries are included in the lawyer’s

15

office overhead”).

Thus, the third Johnson factor

militates in favor of a reduction in the fee award.
The eighth Johnson factor evaluates an attorney’s
performance based on the amount involved and the
result

obtained.

Here,

the

parties

settled

the

dispute quickly, and Comala did not object to class
certification. While the settlement fund is sizeable,
the court finds it troubling that no class claimant
came forward.

Other than the incentive payment to

Gaylor, the entire settlement fund will be donated to
a

local

charity.

The

eighth

Johnson

factor,

therefore, suggests a reduction in attorney’s fees.
The final Johnson factor compares a fee award to
similar cases to determine its reasonableness. Comala
has provided a useful example: in Arthur v. Valwood
Park

Federal

Credit

Union,

Calhoun

and

another

attorney handled a nearly identical EFTA case.

In

that case, the defendant agreed to pay $ 20,000 in
attorney’s fees.

To be clear, the court recognizes
16

that this example involves an unopposed fee award in
another jurisdiction–-the Northern District of Texas.
The court, however, notes that Arthur demonstrates
that EFTA cases can be litigated successfully by two
attorneys, not the duplicitous and redundant efforts
marshaled by four lawyers in this case.

A comparison

to other cases reveals that the $ 47,374.25 lodestar
fee is most excessive.
The court finds that the five Johnson factors
discussed above favor a reduction in the lodestar fee.
The court further concludes that none of the other
Johnson factors points toward an enhancement of the
fee

award.

The

court,

therefore,

reduces

the

$ 47,374.25 lodestar to $ 20,000.

*

*

*

Accordingly, it is ORDERED that plaintiff Danielle
Marie Gaylor’s motion for attorney’s fees (Doc. No.
17

42) is granted and that plaintiff Gaylor have and
recover from defendant Comala Credit Union the sum of
$ 20,000 in attorney’s fees and costs are awarded.
DONE, this the 1st day of June, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE